The Hon’ble Court held that:-

For the time being, we are concerned with four categories of witnesses – a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.

In the present case, PW-5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinized with great care and caution.

In Dalip Singh v. State of Punjab, 1954 SCR 145 this Court observed, without any generalization, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused – each case has to be considered on its own facts. This is what this Court had to say:

“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

  1. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab, (1964) 3 SCR 397. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the “enemy” of the victim. This is what this Court said:

“There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it…….. [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.”

More recently, in Waman v. State of Maharashtra, (2011) 7 SCC 295 this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, Balraje v. State of Maharashtra, (2010) 6 SCC 673, Prahlad Patel v. State of Madhya Pradesh, (2011) 4 SCC 262, Israr v. State of Uttar Pradesh, (2005) 9 SCC 616, S. Sudershan Reddy v. State of Andhra Pradesh, (2006) 10 SCC 163, State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324, Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 and Vishnu v. State of Rajasthan, (2009) 10 SCC 477 it was held:

“It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care.”

The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words:

 

“The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”


 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1614 OF 2009

Raju @ Balachandran & Ors.              …..Appellant (s)

Versus

State of Tamil Nadu                           …..Respondent (s)

J U D G M E N T

Madan B. Lokur, J.

  1. The issue before us is whether the Trial Court and the High Court were both right in believing the testimony of PW-5 Srinivasan, a related and interested witness, that his brother Veerappan and his mother Marudayi were murdered by the appellants. Whether such an issue is of such public importance that it requires a decision from this Court is moot. But, be that as it may, we find no reason to disbelieve the witness and agree with both the Courts that his evidence should be accepted.
  1. Accordingly, we uphold the conviction and sentence of the appellants for having committed the murder of Veerappan and Marudayi. The facts:
  1. Appellant No. 1 (Raju @ Balachandran) is the father of appellant No. 2 (Rajkumar) and of appellant No. 3 (Sekar).
  1. The case of the prosecution was that there was some enmity between the appellants and Veerappan relating to a ritual called “Mandu Vettal” performed before worshipping God in their village. The enmity dated back to about 4 or 5 years prior to the incident that we are concerned with.

 

  1. On 4th May 2003 at about 5.30 a.m. Veerappan had gone to the tea shop of PW-7 Kamaraj and was returning along with PW-1 Thangavel and PW-5 Srinivasan (brother of Veerappan) who were following him. As Veerappan approached his house, the appellants stopped him in the middle of the road and attacked him. Raju dealt a sickle blow on his right leg below the knee. This was followed by sickle blows inflicted on his shoulder, neck and head by Raj Kumar and Sekar. Veerappan died instantaneously, his head having almost been severed from the body.
  1. On hearing some shouting, Veerappan’s mother Marudayi came out of her house. When she saw what was happening, she came to rescue Veerappan and confront the appellants. At that time, Raju dealt her blows with his sickle on her neck, shoulder and head. Marudayi succumbed to her injuries a short while later en route to the hospital, where she was being taken by PW- 5 Srinivasan.
  1. A First Information Report (FIR) of the incident was lodged by PW-1 Thangavel and thereafter investigations were started by the police.
  1. According to the prosecution PW-1 Thangavel and PW-5 Srinivasan were eye witnesses to the incident. Also, when the attack on Veerappan and Marudayi took place, PW-2 Smt. Thangammal (wife of Srinivasan), PW-3 Rajagopal and PW-4 Smt. T. Vasugi came out of their house and witnessed the incident.
  1. The appellants fled away after attacking Veerappan and Marudayi. Later on they surrendered in the local Court. When the investigating officer came to know of this, he sought their custody by moving an application in the Court. He was granted custody of the appellants on 14th May 2003. According to the prosecution, their confessional statement led to the recovery of the sickles used in the attack on the deceased. The clothes worn by the appellants were also recovered.
  1. On the conclusion of investigations, a challan was filed alleging that the appellants had murdered Veerappan and Marudayi. In Sessions Case No.76/2004 before the Additional District & Sessions Judge (Fast Track Court), Tiruchirapally, the appellants pleaded not guilty and claimed trial. The prosecution examined seventeen witnesses while the defence examined two witnesses.

Decision of the Trial Court:

 

  1. During the trial, PW-1 Thangavel, the author of the FIR, PW-3 Rajagopal and PW-4 Smt. Vasugi turned hostile. The Trial Judge was of the view that PW-2 Smt. Thangammal and PW-5 Srinivasan were eye witnesses and believed the testimony of PW-2 Smt. Thangammal (in part) and that of PW-5 Srinivasan (in full).
  1. The Trial Judge held that PW-2 Smt. Thangammal generally stated that all the appellants caused injuries to the deceased without being specific. Consequently, her testimony relating to the sickle blows was not accepted.
  1. As regards PW-5 Srinivasan, it was held that he was specific in saying that Raju injured Veerappan with a sickle on the right leg below the knee, while the other two appellants injured him on his shoulder and neck. The nature of injuries was confirmed by the doctor PW-8 Dr. Sumathi Paul Raj. The evidence on record showed that Veerappan’s head was almost severed from his body and his death was instantaneous. The Trial Judge also accepted the evidence of PW-5 Srinivasan that Marudayi was grievously injured by Raju on the head, neck and shoulder. Again, the nature of injuries was confirmed by the doctor PW-8 Dr. Sumathi Paul Raj who stated that Marudayi died as a result of the injuries.
  1. The Trial Judge rejected the contention that since PW-5 Srinivasan was the elder brother of Veerappan and son of Marudayi, his evidence was that of an interested witness and therefore should not be accepted. He also rejected the contention that since the evidence of PW-5 Srinivasan was not corroborated, his evidence should not be accepted.

 

  1. PW-6 Marudai, father of Veerappan and husband of Marudayi testified to the enmity between the parties as a result of the ritual “Mandu Vettal”.

 

  1. PW-7 Kamaraj the owner of the tea shop visited by Veerappan also turned hostile. He denied that Veerappan was followed by PW-1 Thangavel and PW-5 Srinivasan, but he did not deny that Veerappan had visited his tea shop on the fateful morning.
  1. The other witnesses examined by the prosecution were the doctors who conducted the post mortem, the officers who investigated the occurrence and some others whose testimony is not of much significance.
  1. The Trial Judge rejected the testimony of the two defence witnesses as not credible. DW-1 Murugesan stated that the appellants had come to his house on 3rd May 2003 and had stayed with DW-2 Smt. S. Vasantha. However, this witness was not aware about when the appellants had come to his house and after they left for the house of DW-2 Smt. S. Vasantha when did they return.
  1. DW-2 Smt. S. Vasantha was not believed since she stated that the appellants had gone to a temple festival in her village but there was nothing to support this statement.
  1. Based principally on the evidence of PW-5 Srinivasan and the recoveries made, the Trial Court, by its judgment and order dated 26th November 2004 convicted Raju for offences punishable under Section 341 of the Indian Penal Code (for short ‘IPC’) and Section 326 of the IPC in respect of Veerappan and Section 302 of the IPC for the murder of Marudayi. Rajkumar and Sekar were convicted of offences punishable under Section 302 of the IPC read with Section 34 thereof for the murder of Veerappan. Decision of the High Court:
  1. In Criminal Appeal No.4/2005 filed by the appellants before the Madras High Court it was contended that since PW-1 Thangavel, PW-3 Rajagopal and PW-4 Smt. Vasugi had turned hostile, there was no credible evidence against the appellants, more so, because the author of the FIR PW- 1 Thangavel had turned hostile. As such, the very basis of the case could not be relied upon.
  1. It was further submitted that the Trial Court had not fully believed PW-2 Smt. Thangammal and the only witness who came out in support of the case of the prosecution was PW-5 Srinivasan. It was submitted that there were some discrepancies in his evidence and as per the FIR he was not present at the place of occurrence. Therefore, it was submitted, the evidence of PW-5 Srinivasan could not be relied upon.
  1. On the credibility of PW-5 Srinivasan, it was contended that the medical evidence did not match with his oral evidence and it would be unsafe to rely on his oral description of the events. In addition, it was submitted that since PW-5 Srinivasan was a related and interested witness, his testimony should be closely scrutinized and on such close scrutiny it would turn out that he was not a reliable witness.
  1. The High Court rejected all the contentions urged on behalf of the appellants. It was held that there was no doubt that Veerappan and Marudayi died as a result of homicidal violence. It was further held that on an examination of the evidence of PW-5 Srinivasan it could not be said that he was an unreliable witness. While there may have been some minor discrepancies in his description of the events, he was believed by the Trial Judge and there was no reason for the High Court to disbelieve him.
  1. The High Court noted that on a reading of the FIR it was clear that PW-5 Srinivasan was present at the place of occurrence. In addition thereto, the FIR also mentioned that PW-1 Thangavel had asked PW-5 Srinivasan to take Marudayi to the hospital for treatment. Consequently, the presence of PW-5 Srinivasan at the place of occurrence could not be doubted.
  1. The High Court also held that there was some enmity between the appellants and Veerappan and on an overview of the entire case, the conviction handed down by the Trial Court must be accepted.
  1. Accordingly, the High Court, by its judgment and order dated 2nd August 2006 dismissed the appeal filed by the appellants. Discussion:
  1. Before us, only two contentions were advanced by learned counsel for the appellants. Firstly, it was contended that since PW-5 Srinivasan was a related and interested witness, his evidence must be closely scrutinized, and if his testimony is put to close scrutiny, it will be quite clear that he ought not to be believed. Secondly, it was contended that the prosecution case was doubtful since there was no evidence except the unreliable testimony of PW-5 Srinivasan.
  1. The first contention relates to the credibility of PW-5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi both of whom were victims of the homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore PW-5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.
  1. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki, (1981) 2 SCC 752. It was held that:

“True, it is, she is the wife of the deceased; but she cannot be called an “interested” witness. She is related to the deceased. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”.”

  1. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, AIR 1958 SC 500 the view that a “natural witness” or “the only possible eyewitness” cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trap”. The Constitution Bench held:

“The correct Rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person.”

  1. The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished – in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalized and needs a rethink.
  1. For the time being, we are concerned with four categories of witnesses – a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.
  1. In the present case, PW-5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinized with great care and caution.
  1. In Dalip Singh v. State of Punjab, 1954 SCR 145 this Court observed, without any generalization, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused – each case has to be considered on its own facts. This is what this Court had to say:

“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

  1. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab, (1964) 3 SCR 397. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the “enemy” of the victim. This is what this Court said:

“There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it…….. [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.”

  1. More recently, in Waman v. State of Maharashtra, (2011) 7 SCC 295 this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, Balraje v. State of Maharashtra, (2010) 6 SCC 673, Prahlad Patel v. State of Madhya Pradesh, (2011) 4 SCC 262, Israr v. State of Uttar Pradesh, (2005) 9 SCC 616, S. Sudershan Reddy v. State of Andhra Pradesh, (2006) 10 SCC 163, State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324, Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 and Vishnu v. State of Rajasthan, (2009) 10 SCC 477 it was held:

“It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care.”

  1. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words:

“The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”

  1. We have gone through the evidence of PW-5 Srinivasan by applying the discerning scrutiny standard and find it difficult to overturn the view expressed by both the Courts in their acceptance of his evidence. His description of the events is simple and straightforward and the cross- examination does not demolish his version of the events. In fact, the cross- examination is directed more at proving that one Subramaniam may have been the assailant since Veerappan had an illicit relationship with Subramaniam’s first wife Periammal. This was ruled out by PW-5 Srinivasan who did not want to shield the real assailant and put the blame for the occurrence on someone else.
  1. As far as the second contention is concerned, it overlaps with the first. Both the Trial Court and the High Court have concurrently held that PW-5 Srinivasan was an eye witness to the murder of Veerappan and Marudayi. The conclusion arrived at by both the Courts has not been shown to be perverse in any manner whatsoever nor has it been shown deserving of reversal.
  1. The presence of PW-5 Srinivasan at the place of occurrence cannot be doubted in view of the FIR lodged by PW-1 Thangavel and his testimony. Even though PW-1 Thangavel may have turned hostile, the fact remains that a report was made to the police about the homicidal attack on Veerappan and Marudayi. That there was a homicidal attack on them is not in dispute. This is confirmed even by the witnesses who turned hostile. It is also not in dispute that Veerappan died on the spot and that Marudayi was grievously injured. This too is confirmed by the witnesses who turned hostile. That PW- 5 Srinivasan took Marudayi to the hospital immediately after she was attacked is confirmed by PW-1 Thangavel. On the basis of these facts, which are evident from the record, there is no option but to accept the conclusion of both the Courts that PW-5 Srinivasan was present at the place of occurrence and was an eye witness to the incident. His testimony is not unreliable but is supported in its essential details by the testimony of the other witnesses.

Conclusion:

  1. We find the evidence of PW-5 Srinivasan credible notwithstanding that he was a related and interested witness. Accordingly, we uphold the conviction and sentence awarded to the appellants by the Trial Court and confirmed by the High Court.
  1. The appeal is dismissed.

.…….……………………..J.

(Swatanter Kumar) ….…….……………………..J.

(Madan B. Lokur)

What is Inquest Report ?

An inquest is a judicial inquiry in common law jurisdictions, particularly one held to determine the cause of a person’s death. Conducted by a judge, jury, or government official, an inquest may or may not require an autopsy carried out by a coroner or medical examiner.

Police to enquire and report on suicide, etc. As per Sec. 174 of Cr.P.C.

(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall proceed to the place where the body

of such deceased person is, and there, in the presence of two’ or more respectable inhabitants of the neighbourhood, shall make an investiga- tion, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub- divisional Magistrate.

(3) 1 When-

(i) the case involves suicide by a woman within seven years of her marriage; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do, he shall. subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub- divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate.

In Podda Narayana v. State of A.P. AIR 1975 SC 1252 it was held that the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under S. 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In Shakila Khader v. Nausher Gama AIR 1975 SC 1324 the contention raised that non-mention of a person’s name in the inquest report would show that he was not a eye- witness of the incident was repelled on the ground that an inquest under Section 174 Cr.P.C. is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig v. State of Andhra Pradesh AIR 1987 SC 923 that the non-mention of name of an eye-witness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned. The view taken in Podda Narayana v. State of A.P. (supra) was approved by a three-Judge Bench in Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853 and it was held that the testimony of an eye-witness could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under Section 174 Cr.P.C. was also explained in Amar Singh v. Balwinder Singh 2003 (2) SCC 518. In the said case the High Court had observed that the fact that the details about the occurrence were not mentioned in the inquest report showed that the investigating officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. After noticing the language used in Section 174 Cr.P.C. and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited, viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eye-witness. In Meharaj Singh v. State of U.P. (supra) the language used by the legislature in Section 174 Cr.P.C. was not taken note of nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby over-ruled. The challenge laid to the prosecution case by Shri Jain on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted.

                                         Citation

Supreme Court of India

Radha Mohan Singh @ Lal Saheb & … vs State Of U.P on 20 January, 2006

CASE NO.:Appeal (crl.)  1183-1185 of 2004

PETITIONER:        Radha Mohan Singh @ Lal Saheb & others

Versus

RESPONDENT                         ……State of U.P.

DATE OF JUDGMENT: 20/01/2006

BENCH : Shri K.G. BALAKRISHNAN, ARUN KUMAR & G.P. MATHUR

Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.

The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.”


REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL NO.   2049        OF 2013

(Arising out of S.L.P. (Crl.) No. 4102 of 2013)

State of Madhya Pradesh                               …. Appellant(s)

Versus

Pradeep Sharma                                             ….

Respondent(s)

WITH

2 CRIMINAL APPEAL No.   2050         OF 2013

(Arising out of S.L.P. (Crl.) No. 4406 of 2013)

J U D G M E N T

P.Sathasivam, CJI.

1)    Leave granted.

2)    These appeals are  filed  against  the  orders  dated  10.01.2013  and

17.01.2013 passed by the High Court of Madhya Pradesh Principal Seat at Jabalpur in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012 respectively whereby the High Court granted anticipatory bail to the respondents herein.

3)    Brief facts:

  1. a) The case  of  the  prosecution  is  that  Rajesh  Singh  Thakur  (the

deceased), resident of village Gopalpur, Tehsil Chaurai, District Chhindwara, Madhya Pradesh and Pradeep Sharma (respondent herein), resident of the same village, were having enmity with each other on account of election to the post of Sarpanch.

  1. b) On 10.09.2011, Pradeep Sharma (respondent herein), in order to get rid of Rajesh Singh Thakur (the deceased), conspired along with other accused persons and managed to call him to the Pawar Tea House, Chhindwara on the pretext of setting up of a tower in a field where they offered him poisoned milk rabri (sweet dish).
  2. c) After consuming the same, when he left the place to meet his sister, his condition started getting deteriorated because of vomiting and diarrhea. Immediately, the father of the deceased took him to the District Hospital, Chhindwara wherefrom he was referred to the Government Hospital, Chhindwara.
  3. d) Since there was no improvement in his condition, on 11.09.2011, he was shifted to the Care Hospital, Nagpur where he took his last breath. The hospital certified the cause of death to be poisoning. On the very same day, after sending the information to the Police Station, Sitabardi, Nagpur, the body was sent for the post mortem.
  4. e) Inder Singh Thakur-father of the deceased submitted a written complaint to the Police Station Kotwali, Chhindwara on 13.09.2011 suspecting the role of the respondents herein. After investigation, a First Information Report (in short ‘the FIR’) being No. 1034/2011 dated 18.10.2011 was registered under Sections 302 read with 34 of the Indian Penal Code, 1860 (in short ‘the IPC’).
  5. f) On 01.08.2012, Pradeep Sharma (respondent herein) moved an application for anticipatory bail by filing Misc. Criminal Case No. 7093 of 2012 before the High Court which got rejected vide order dated 01.08.2012 on the ground that custodial interrogation is necessary in the case.
  6. g) On 26.08.2012, a charge sheet was filed in the court of Chief Judicial Magistrate, Chhindwara against Sanjay Namdev, Rahul Borkar, Ravi Paradkar and Vijay @ Monu Brahambhatt whereas the investigation in respect of Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi (respondents herein), absconding accused, continued since the very date of the incident.
  7. h) On 21.11.2012, arrest warrants were issued against Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi but the same were returned to the Court without service. Since the accused persons were not traceable, on 29.11.2012, a proclamation under Section 82 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) was issued against them for their appearance to answer the complaint.
  8. i) Instead of appealing the order dated 01.08.2012, Pradeep Sharma (respondent herein) filed another application for anticipatory bail being Misc. Criminal Case No. 9996 of 2012 before the High Court. Vide order dated 10.01.2013, the High Court granted anticipatory bail to Pradeep Sharma (respondent herein). Similarly, another accused-Gudda @ Naresh Raghuvanshi was granted anticipatory bail by the High Court vide order dated 17.01.2013 in Misc. Criminal Case No. 15283 of 2012.
  9. j) Being aggrieved by the orders dated 10.01.2013 and 17.01.2013, State of Madhya Pradesh has filed the above appeals before this Court.
  10. k) In the meantime, the respondents herein approached the Court of Chief Judicial Magistrate, Chhindwara for the grant of regular bail. Vide order dated 20.02.2013, the accused persons were enlarged on bail.

4) Heard Ms. Vibha Datta Makhija, learned senior counsel for the appellant-State and Mr. Niraj Sharma, learned counsel for the respondents.

5) The only question for consideration in these appeals is whether the High Court is justified in granting anticipatory bail under Section 438 of the Code to the respondents/accused when the investigation is pending, particularly, when both the accused had been absconding all along and not cooperating with the investigation.

6) Ms. Vibha Datta Makhija, learned senior counsel for the appellant- State, by drawing our attention to the charge sheet, submitted that the charges filed against the respondents/accused relate to Sections 302, 120B and 34 of the IPC which are all serious offences and also of the fact that both of them being absconders from the very date of the incident, the High Court is not justified in granting anticipatory bail that too without proper analysis and discussion.

7) On the other hand, Mr. Niraj Sharma, learned counsel for the respondents in both the appeals supported the order passed by the High Court and prayed for dismissal of the appeals filed by the State.

8) We have carefully perused the relevant materials and considered the rival contentions.

9) In order to answer the above question, it is desirable to refer Section 438 of the Code which reads as under:-

“438. Direction for grant of bail to person apprehending arrest.—(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

Xxx xxx xxx”

10) The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.

11) In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303, this Court considered the scope of Section 438 of the Code as under:-

“16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.

The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.”

12) Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court, (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis to a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:

“12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.” It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. In the case on hand, a perusal of the materials i.e., confessional statements of Sanjay Namdev, Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of witnesses that were recorded and the report of the Department of Forensic Medicine & Toxicology Government Medical College & Hospital, Nagpur dated 21.03.2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21.11.2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under Section 82 of the Code was issued on 29.11.2012. The documents (Annexure-P13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondents/accused under Section 82 of the Code to answer the complaint on 29.12.2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason except stating “facts and circumstances of the case”, granted an order of anticipatory bail to both the accused. It is relevant to point out that both the accused are facing prosecution for offences punishable under Sections 302 and 120B read with Section 34 of IPC. In such serious offences, particularly, the respondents/accused being proclaimed offenders, we are unable to sustain the impugned orders of granting anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.

13) In the light of what is stated above, the impugned orders of the High Court dated 10.01.2013 and 17.01.2013 in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012 respectively are set aside. Consequently, the subsequent order of the CJM dated 20.02.2013 in Crime No. 1034 of 2011 releasing the accused on bail after taking them into custody in compliance with the impugned order of the High Court is also set aside.

14) In view of the same, both the respondents/accused are directed to surrender before the court concerned within a period of two weeks failing which the trial Court is directed to take them into custody and send them to jail.

15) Both the appeals are allowed on the above terms.

………….…………………………CJI.

(P. SATHASIVAM) .………….……………………………J.

(RANJAN GOGOI) NEW DELHI;

The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. The words ‘at any time after the issue of proclamation’ are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words ‘at any time’ in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.

So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.


Delhi High Court

Rohit Kumar @ Raju S/O Late Sh. Om … vs State Of Nct Delhi

Author: V Gupta

Bench: V Gupta

JUDGMENT V.B. Gupta, J.

  1. Petitioner herein had earlier filed Crl.M.C.No.2952/2007 under Section 482 Cr.P.C. seeking quashing of order dated 31st May, 2007 and 25th July, 2007 passed by Sh. Rakesh Tewari, Addl.Sessions Judge in Criminal Complaint case, whereby he had issued non-bailable warrants and process under Section 82 and 83 Cr.P.C. against the petitioner.
  1. In that petition, it was also prayed that Addl.Sessions Judge be directed to bail out the petitioner in accordance with law and petitioner undertook that he will appear before the court of Addl.Sessions Judge, if directed and co-operate with the prosecution of the case on the next date of hearing, that is, 19th September, 2007.
  1. On that petition, this Court on 17th September, 2007passed the following order:

Keeping in view the facts and circumstances of the case, the execution of process under Section 82/83 Cr.P.C. issued against the petitioner is stayed till 19th September, 2007 provided the petitioner deposit a sum of Rs. 2,500/- as adjournment costs with the trial court by that date and appear before the trial court on that day.

  1. On 19th September, 2007 as directed by this Court, the petitioner appeared before the trial court who passed the following order, relevant portion of which reads as under:

Accused has appeared along with the counsel and has moved the bail application and annexed the copy of the order of the Hon’ble High Court of Delhi dated 17.09.07 in which he sought the stay of the order dated 31.05.07 and 25.07.07 whereby the process under Section. 82/83 Cr.P.C. was issued against the accused. The time requisite for process under Section. 82 Cr.P.C. had already expired on 29.08.07 when the process server returned the execution reports of the said process. Today the case was fixed for recording of the statement of the process server so that the accused could have been declared as a Proclaimed Offender and the case should have been fixed for recording the evidence under Section. 299 Cr.P.C. Although on 17.09.07 there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order and directed the accused to deposit the amount as cost as mentioned in the order which he has deposited with this Court.

  1. Thereafter, trial court heard arguments on bail application and rejected the bail application of the petitioner and took him into custody.
  1. Now, the present bail application has been filed on behalf of the petitioner and notice of the same was issued to State, as well as to respondent No. 2 and the trial court record was also summoned.
  2. It has been contended by learned Counsel for the petitioner that, in terms of the order dated 17th September, 2007, petitioner appeared before the trial court and deposited the costs of Rs. 2,500/-, but the trial court rejected the bail application, making certain observations as mentioned above. The trial court had no business to make such comments and it deliberately disregarded the order, dated 17th September, 2007 and rejected the bail application of the petitioner.
  3. With regard to the above observation made by the trial court, prima facie, it appears that the trial court was not at ease with the order dated 17th September, 2007 passed by this Court and the observation made by the trial court are uncalled for, as it cast aspertions on the functioning of this Court and the same have also been deprecated by the learned Counsel for the respondents.
  4. Brief facts of the case are that respondent No. 2, BSES Rajdhani Power Ltd. had filed a complaint under Section 151 read with Section 154 of the Electricity Act, 2003 against one Raju (user), the present petitioner on 13th April, 2007. After registration of the case, the Addl.Sessions Judge listed the matter on 7th May, 2007 for pre-summoning evidence. On that date, pre-summoning evidence was filed by way of affidavits and the same was closed and the trial court passed the following order:

From the perusal of the record and the statements of the said witnesses, I am satisfied that a prima facie case is made out against the accused under Section 135 of the Electricity Act, 2003. Let the accused be summoned for the said offence on filing of PF and RC and process be given dusty and accused be served through prescribed courier service also for 31.5.07.

Sd/-

Rakesh Tewari ASJ, Delhi/07.05.2007

  1. On 31st May, 2007, the trial court passed the following order:

Present: Deemed APP for the complainant The tenant at the premises in question informed that accused is residing at Daryaganj, Delhi.

Issue NBW against the accused through SHO, P.S. Sangam Vihar, New Delhi for 25.07.07.

Sd/-

Rakesh Tewari ASJ, Delhi/31.05.2007

  1. According to these proceedings, prima facie, it is apparent that the petitioner was never served with any summon nor he was avoiding to receive the summon. Be that as it may, on 25th July, 2007, the trial court passed the following order:

Present:- Deemed APP for the complainant company The accused being the landlord of the premises in question seldom visits the premises as per report on NBW.

Issue process under Section 82/83 Cr.P.C. against the accused through SHO, PS. Sangam Vihar, New Delhi on the last known address for 29.08.07.

Sd/-

Rakesh Tewari ASJ, Delhi/25.07.2007

  1. On 29th August, 2007, the following order was passed:

Present: Deemed APP for the complainant company Process under Section 82/83 Cr.P.C. received back against the accused. Let the Process Server be summoned for recording of his statement on 19.09.07.

Sd/-

Rakesh Tewari ASJ, Delhi/29.08.2007

  1. In the meanwhile, on 17th September, 2007, this Court has passed the order in Crl.M.C.No.2952/2007 as mentioned above.
  2. This observation made by the trial court that:- ‘Although, on 17th September, 2007, there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order…’ goes on to show that process under Section 82/83 Cr.P.C. was duly executed, but that was not the case in reality.
  3. It appears that the learned Addl.Sessions Judge is not aware with the basics of Code of Criminal Procedure, as it is apparent from record that process under Sections 82/83 Cr.P.C. was never executed in accordance with law. For his knowledge and reference, Sections 82 and 83 of Cr.P.C are reproduced as under:

Section 82. Proclamation for person absconding.-(1) Any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:

(i)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court- house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in Clause (i) of Sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

(4) Where a proclamation published under Sub-section (1) is in respect of a person accused of an offence punishable under Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of Sub-sections (2) and (3) shall apply to a declaration made by the Court under Sub-section (4) as they apply to the proclamation published under Sub-section (1).

Section 83. Attachment of property of person absconding.-(1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment or any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation.

(2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases-

(a) by taking possession; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

  1. The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies:

(i) issuing of a proclamation (Section 82)

(ii) attachment or sale of property (Section 83)

  1. The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant can be issued. An attachment warrant can be issued only after the issuance of proclamation.
  2. The expression ‘reason to believe’ occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term ‘absconded’ is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had ‘absconded’ or ‘concealed himself.’
  3. The three Clauses (a), (b), and (c) of Sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of Sub-section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory.
  4. Here the question to be seen is as to whether proclamation under Section 82 Cr.P.C. has been effected in accordance with law or not.
  5. As per proclamation under Section 82 Cr.P.C. placed on record, the same was issued on 27th July, 2007 directing the petitioner to appear before the court on 29th August, 2007. As per service report on the back of this proclamation, a copy of this proclamation was pasted on the house and another was pasted on the main door of the court, on 6th August, 2007.
  6. So, admittedly, as the proclamation has been effected on 6th August, 2007 and petitioner was given time to appear in the court on 29th August, 2007, the petitioner was granted less than thirty days from the date of publishing of the proclamation, to appear in the court. As per Section 82(1) Cr.P.C. the court was required to give time ‘not less than thirty days from the date of publishing such proclamation’.
  7. The proclamation issued under Section 82 Cr.P.C. requires appearance of the person, against whom warrant has been issued, at a specified time, at a specified place. The date fixed should be not less than thirty days from the date of publication of the proclamation. If that be so, simultaneous attachment of property cannot be effected.
  8. Since the proclamation under Section 82 Cr.P.C. had been effected only on 6th August, 2007, so the petitioner, could not be asked to appear before the court on 29th August, 2007, as specified time of not less than thirty days was not given to him.
  9. Now, coming to proclamation issued under Section 83 Cr.P.C, it was issued on 27th July, 2007 directing the petitioner to appear in the court on 29th August, 2007. As per service report on the back of this proclamation interestingly, it was effected only on 29th August, 2007, that is, the day on which the petitioner was supposed to appear in the court.
  1. The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. The words ‘at any time after the issue of proclamation’ are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words ‘at any time’ in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.
  2. So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.
  3. When on 29th August, 2007, no valid proclamation under Section 82 and 83 Cr.P.C. has been effected, then where was the question for the trial court for recording the statement of the process server so, that the petitioner could have been declared as a proclaimed offender and case should have been fixed for recording the evidence under Section 299 Cr.P.C. It appears that the trial court was in undue haste and was bent upon to declare the petitioner as proclaimed offender, without following the due process of law.
  4. So, the above mentioned orders passed by Sh. R.K.Tewari, Additional Session Judge goes on to show that he lacks even elementary knowledge about the Code of Criminal Procedure and also does not know as to in which cases and in what manner, proclamation under Section 82/83 Cr.P.C. are to be issued. In spite of the fact that Sh. R.K.Tewari has no basic knowledge of the criminal law, he has chosen to comment on the order passed by this Court, which amounts to judicial indiscipline.
  5. It also appears that, this judicial officer is not aware of the fact or does not have even that knowledge, that the sub-ordinate courts are, by way of constitutional provisions, bound by the decision of local High Courts as is every court in the country including the High Courts, are bound by the decision of the Supreme Court by virtue of provisions of Article 141 of the Constitution of India and on this point, judgment of this Court on its own motion v. Central Bureau of Investigation 2004 (72) DRJ 629 may be relevant and para 28 of it is reproduced as under:
  1. There is no gain saying the fact that the disobedience or disregard of the law laid down by the High Court by the subordinate courts is not only against the very concept of rule of law but also verges on the contempt of court as subordinate courts are, by way of constitutional provision, bound by the decision of the local High Court as is every court of the country including the High Courts, bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the Constitution. If the subordinate courts start ignoring the law laid down by their High Courts and start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure of the country, rule of law and concept of liberty of citizens will be the first casualty.
  2. The observations made by the trial court in its order dated 19th September, 2007 are per se disobedience of the order passed by this Court and verges on the contempt of court. Since Sh. R.K. Tewari, Additional Session Judge does not have even elementary knowledge of the Code of Criminal Procedure, under these circumstances, it would be appropriate, if Sh.Rakesh Tewari, Addl.Sessions Judge, undergoes refresher course at Delhi Judicial Academy in criminal law and procedure, at the earliest and the District and Sessions Judge would see to it that name of this officer is recommended in the first available such course and this officer should undergo training in Dehli Judicial Academy, under the supervision of the Director, Delhi Judicial Academy at least for a period of three months and, Director, Delhi Judicial Academy, should submit to this Court, performance report, with regard to this judicial officer.
  3. Registrar General of this Court is directed to send the copy of this Judgment to all the Judicial Officers of Delhi for guidance and one copy be sent to the Inspecting Judge as well as one copy of Judgment be placed in the personal file of this Judicial Officer.
  4. Trial Court record be sent back forthwith. Ordered accordingly.

What is FIR?

FIR stands for first information report. It is a document providing the basic information that a cognizable offense has been committed. We must know that FIR is not a conclusive proof that a person has committed an offense. FIR is the starting point of the investigation in a particular offense.

What is the law on FIR?

(1) Every information relating to the commission of a cognizable offense, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information.

(2) A copy of the information as recorded under sub-section

(3) shall be given forthwith, free of cost, to the informant.

Is a police officer duty bound to lodge FIR in every case?
The police officer is duty bound to lodge FIR in every cognizable case. And if a police officer gets a complaint from an aggrieved person about the cognizable offense, he must lodge a FIR. And if a police officer refuses to do so, one must approach the SP of the concerned area that a police officer has refused to lodge FIR.

Meaning of Zero FIR

As per the Sec 154 of Criminal procedure Code, every Police officer is law bound to register the First Information Report of any cognizable offence committed, irrespective of the jurisdiction in which the offence was committed. When a cognizable offence is reported, the police officer registering the case forthwith starts the investigation, if it is committed in his jurisdiction. if it is not committed in his jurisdiction, he registers the FIR under number 00 and sends it to the police station, where the offence was committed for further investigation. Such FIR is called as zero FIR. It is for the convenience of the victim that instead of making the victim run from pillar to post, the police officer, where the victim approaches as per his convenience, the case is recorded and police officer sends it to the concerned police station.

CrPC 154: Section 154 of the Criminal Procedure Code

Information in cognizable cases

Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer; Provided further that—
in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;
the recording of such information shall be video graphed;
the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.
A copy of the information as recorded under Sub-Section (1) shall be given forthwith, free of cost, to the informant.
Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-Section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

Related Judgments

In the case of Satvinder Kaur vs. State (Government of NCT Delhi), The complainant had appealed in the Supreme Court against the order of the High Court, where the High Court had quashed the FIR filed at Delhi Police Station by the complainant. The Supreme Court held that, Police can investigate the case, which does not fall under their jurisdiction.

Let us look at another case. In the case of Bimla Rawal and Ors. v State (NCT of Delhi) and Anr, FIR was lodged in Delhi, despite the fact that all incidents occurred in Mumbai. Writ Petition was filed in Supreme Court regarding the mala fide intentions of police succumbing under the pressure of opposite party. Supreme Court quashed the FIR filed at Delhi and ordered to file a fresh FIR in Mumbai. In this case the police misused the power of filing a Zero FIR at the behest of the opposite party.

The Hon”ble Supreme Court held that:-

In the absence of such guidelines in India, Courts go  by  their
own perception about the philosophy behind the prescription of certain
specified penal consequences for particular nature of crime. For  some
deterrence and/or vengeance becomes  more  important  whereas  another
Judge may be more influenced by rehabilitation or restoration  as  the
goal of sentencing.  Sometimes, it would  be  a  combination  of  both
which would weigh in the mind of the Court in  awarding  a  particular
sentence. However, that may be question of quantum.
What follows from the discussion behind the purpose of  sentencing  is
that if a particular crime is to  be  treated  as  crime  against  the
society  and/or  heinous  crime,  then  the  deterrence  theory  as  a
rationale for punishing the offender  becomes  more  relevant,  to  be
applied in such cases.  Therefore, in respect of such  offences  which
are treated against the society, it becomes the duty of the  State  to
punish the offender.  Thus, even when there is  a  settlement  between
the offender and the victim, their will would not prevail as  in  such
cases the matter is  in  public  domain.   Society  demands  that  the
individual offender  should  be  punished  in  order  to  deter  other
effectively as it amounts to greatest good of the greatest  number  of
persons in a  society.   It  is  in  this  context  that  we  have  to
understand the scheme/philosophy behind Section 307 of the Code.

We would like to expand this principle in some more  detail.  We
find, in practice and in reality, after recording the  conviction  and
while awarding the sentence/punishment the Court is generally governed
by any or all or combination of the aforesaid factors.  Sometimes,  it
is the deterrence theory which prevails in the  minds  of  the  Court,
particularly in those cases where the crimes committed are heinous  in
nature or depicts depravity, or lack  morality.  At  times  it  is  to
satisfy the element of  “emotion”  in  law  and  retribution/vengeance
becomes the guiding factor.  In any case, it cannot be denied that the
purpose  of  punishment  by  law   is   deterrence,   constrained   by
considerations  of  justice.  What,  then,  is  the  role  of   mercy,
forgiveness and compassion in law?  These are by no means  comfortable
questions and even the answers may not be comforting.   There  may  be
certain cases which are too obvious  namely  cases  involving  heinous
crime with element of criminality against the society and not  parties
inter-se.  In such cases, the  deterrence  as  purpose  of  punishment
becomes paramount and even if the victim or his relatives  have  shown
the virtue and gentility, agreeing to forgive the culprit,  compassion
of that private party would not move the court in accepting  the  same
as larger and more important public policy of showing the iron hand of
law to the wrongdoers, to reduce the commission of such  offences,  is
more important. Cases of murder, rape, or other sexual  offences  etc.
would clearly fall in this category.  After all, justice requires long
term vision.  On the other hand, there may be, offences falling in the
category where “correctional” objective of criminal law would have  to
be given more weightage  in  contrast  with  “deterrence”  philosophy.
Punishment, whatever else may be, must be fair and conducive  to  good
rather than further evil.  If in a particular case the Court is of the
opinion that the settlement between the parties  would  lead  to  more
good; better relations between them; would prevent further  occurrence
of such encounters between the parties, it may hold settlement  to  be
on a better pedestal.  It  is  a  delicate  balance  between  the  two
inflicting interests which is  to  be  achieved  by  the  Court  after
examining all these parameters and then deciding as to which course of
action it should take in a particular case.

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[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.686/2014

(arising out of S.L.P.(Criminal) No.9547 of 2013)

Narinder Singh & Ors.                              ……Appellants

Vs.

State of Punjab & Anr.                             …Respondents

J U D G M E N T

A.K.SIKRI,J.

1.    The present Special Leave Petition has  been  preferred  against
the impugned judgment/final order dated 8.10.2013 passed by  the  High
Court of Punjab and Haryana at Chandigarh  in  Criminal  Miscellaneous
Petition No.27343/2013. It was a petition under  Section  482  of  the
Code of Criminal Procedure (hereinafter referred to as the “Code”) for
quashing   of   FIR   No.121/14.7.2010   registered   under   Sections
307/324/323/34,IPC, on the basis of compromise dated 22.7.2013 entered
into between the petitioners ( who are accused in the  said  FIR)  and
respondent No.2 (who is the complainant).  The High Court has  refused
to exercise its extraordinary discretion invoking  the  provisions  of
Section 482 of the Code on the ground that four injuries were suffered
by the complainant and as per the opinion of the Doctor,  injury  No.3
were serious in nature.  The High Court, thus, refused to  accept  the
compromise entered into between the parties, the effect whereof  would
be that the petitioners would face trial in the said FIR.

2.    Leave granted.

3.    We have heard counsel for the parties at length.

4.    It may be stated at the outset that the petitioners herein,  who
are three in number, have been charged under various provisions of the
IPC including for committing offence punishable under Section 307, IPC
i.e. attempt to commit murder.  FIR No.121/14.7.2010  was  registered.
In the aforesaid FIR, the allegations against the petitioners are that
on 9.7.2010 at 7.00 A.M.  while  respondent  No.2  was  going  on  his
motorcycle to bring diesel from village Lapoke, Jasbir Singh, Narinder
Singh both sons of Baldev Singh and Baldev Singh son  of  Lakha  Singh
attacked him and injured him. Respondent No.2  was  admitted  in  Shri
Guru Nanak Dev Hospital, Amritsar. After examination the doctor  found
four injuries on his person. Injury No.1 to 3  are  with  sharp  edged
weapons and injury No.4 is simple. From the statement of  injured  and
MLR’s report, an FIR under sections  323/324/34  IPC  was  registered.
After X-ray report relating to injury No.3, section 307 IPC was  added
in the FIR

5.     After  the  completion  of  investigation,  challan  has   been
presented in the Court against the petitioners and charges  have  also
been framed. Now the  case  is  pending  before  the  Ld.Trial  Court,
Amritsar, for evidence.

6.    During the pendency of trial proceedings, the  matter  has  been
compromised between the petitioners as well as the private  respondent
with the intervention of the Panchayat on 12.07.2013.    It  is  clear
from the above that  three  years  after  the  incident,  the  parties
compromised the matter with  intervention  of  the  Panchayat  of  the
village.

7.    It is on the basis of this  compromise,  the  petitioners  moved
aforesaid criminal petition under section 482 of the Code for quashing
of the said FIR.  As per the petitioners, the parties have settled the
matter, as they have decided to keep harmony between  them  to  enable
them to live with peace and love.  The compromise  records  that  they
have no grudge against each other and the complainant has specifically
agreed that he has no objection if the FIR  in  question  is  quashed.
Further, both the parties  have  undertaken  not  to  indulge  in  any
litigation against each other and withdraw all the complaints  pending
between the parties before the  court.   As  they  do  not  intend  to
proceed with any criminal case against each other, on that  basis  the
submission of the petitioners before the  High  Court  was  that   the
continuance of the criminal proceedings in the aforesaid FIR will be a
futile exercise and mere wastage of precious time of the court as well
as investigating agencies.

8.    The aforesaid submission, however,  did  not  impress  the  High
Court as the medical report depicts the injuries  to  be  of  grievous
nature. The question for consideration, in these circumstances, is  as
to whether the court should have accepted the  compromise  arrived  at
between the parties and quash the FIR as well as criminal  proceedings
pending against the petitioner.

9.    The ld. counsel  for  the  State  has  supported  the  aforesaid
verdict of the High Court arguing that since offence under Section 307
is non-compoundable, the respondents could  not  have  been  acquitted
only because of the reason  that  there  was  a  compromise/settlement
between  the  parties.   In  support,  the  learned  counsel  for  the
respondent-State has relied upon the judgment of  this  Court  in  the
case of Rajendra Harakchand Bhandari vs. State of  Maharashtra  (2011)
13 SCC 311 wherein this Court held that since  offence  under  Section
307 is not compoundable, even when the parties had settled the matter,
compounding of the offence was out of question.  Said settlement along
with other extenuating circumstances was only taken as the ground  for
reduction of the sentence in the following manner:

“We must immediately state that the offence under  Section
307 is not compoundable in terms of  Section  320(9)  of  the
Code of Criminal Procedure, 1973 and, therefore,  compounding
of the offence in  the  present  case  is  out  of  question.
However, the circumstances pointed out by the learned  Senior
Counsel do persuade us for a lenient view in  regard  to  the
sentence. The incident occurred on 17.5.1991 and it is almost
twenty years since then. The appellants are agriculturists by
occupation and have no previous  criminal  background.  There
has  been  reconciliation  amongst  parties;  the   relations
between the appellants and the victim have become cordial and
prior to the appellants’ surrender,  the  parties  have  been
living peacefully in the village. The appellants have already
undergone the sentence of more  than  two-and-a  half  years.
Having regard to those circumstances, we are  satisfied  that
ends of justice will  be  met  if  the  substantive  sentence
awarded to the appellants is reduced to  the  period  already
undergone while maintaining the amount of fine.

Consequently,  while  confirming  the  conviction  of  the
appellants for the offences punishable under Section 307 read
with Section 34, Section 332 read with Section 34 and Section
353 read with Section 34, the substantive sentence awarded to
them by the High Court  is  reduced  to  the  period  already
undergone. The fine amount and the default stipulation remain
as it is.”

10.     The learned counsel for the  appellant,  on  the  other  hand,
submitted that merely because an  offence  is  non-compoundable  under
Section 320 of the Code would not mean that the High Court is  denuded
of its power to quash the proceedings in exercising  its  jurisdiction
under Section 482 of the Cr.P.C.  He argued that Section 320(9) of the
Code cannot limit or affect the power of the High Court under  Section
482 of the Cr.P.C.  Such a power is recognized by the Supreme Court in
catena of judgments. He further submitted that having  regard  to  the
circumstances in the present case where the fight had occurred on  the
spot in the heat of the moment inasmuch as both  sides  were  verbally
fighting when the petitioners had struck the victim, this assault  was
more of a crime against the individual than  against  the  society  at
large. He further submitted that this Court in Dimpey  Gujral v. Union
Territory through Administrator  2012 AIR SCW 5333 had quashed the FIR
registered under sections 147,148,149,323,307,452 and 506 of the  IPC.

11.   We find that there are cases where the power of the  High  Court
under Section 482 of the  Code  to  quash  the  proceedings  in  those
offences which are  uncompoundable  has  been  recognized.   The  only
difference is that under Section 320(1) of the Code, no permission  is
required from the Court in those cases which are  compoundable  though
the Court has discretionary power to refuse to compound  the  offence.
However, compounding under Section 320(1) of the Code  is  permissible
only in minor offences or in non-serious offences. Likewise, when  the
parties reach settlement in respect of offences enumerated in  Section
320(2) of the Code, compounding is permissible  but  it  requires  the
approval of the Court.  In so far as serious offences  are  concerned,
quashing  of  criminal  proceedings  upon  compromise  is  within  the
discretionary powers of the High Court.  In such cases, the  power  is
exercised under Section 482 of the Code and proceedings  are  quashed.
Contours of these powers were described by this Court in B.S.Joshi vs.
State of Haryana (2003)  4  SCC  675        which  has  been  followed
and further explained/elaborated in so many  cases  thereafter,  which
are  taken  note  of  in  the  discussion  that  follows  hereinafter.

12.   At the same time, one has to keep in mind the subtle distinction
between the power of compounding of  offences  given  to  Court  under
Section 320 of the Code and quashing of criminal  proceedings  by  the
High Court in exercise of its inherent jurisdiction conferred upon  it
under Section 482 of the Code.  Once, it is found that compounding  is
permissible only if a particular offence is covered by the  provisions
of Section 320 of the Code and the  Court  in  such  cases  is  guided
solitary and squarely by the compromise between the parties, in so far
as power of quashing under Section 482 of the Code is concerned, it is
guided by the material on record as to whether  the  ends  of  justice
would  justify  such  exercise  of  power,   although   the   ultimate
consequence may be acquittal  or  dismissal  of  indictment.   Such  a
distinction is lucidly explained by a three-Judge Bench of this  Court
in Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC  303.   Justice
Lodha, speaking for the Court, explained the  difference  between  the
two provisions in the following manner:

“Quashing of offence or criminal proceedings on the ground
of settlement between an offender and victim  is  not  the  same
thing as compounding of offence.  They  are  different  and  not
interchangeable. Strictly speaking, the power of compounding  of
offences given to  a  court  under  Section  320  is  materially
different from the quashing of criminal proceedings by the  High
Court in exercise of its inherent jurisdiction.  In  compounding
of offences, power of a criminal court is circumscribed  by  the
provisions contained in Section 320  and  the  court  is  guided
solely and squarely  thereby  while,  on  the  other  hand,  the
formation of opinion by the High Court for quashing  a  criminal
offence or criminal proceeding or criminal complaint  is  guided
by the material on record as to  whether  the  ends  of  justice
would justify such  exercise  of  power  although  the  ultimate
consequence may be acquittal or dismissal of indictment.

B.S.Joshi, Nikhil Merchant,  Manoj  Sharma  and  Shiji  do
illustrate the principle that the High Court may quash  criminal
proceedings or FIR or complaint  in  exercise  of  its  inherent
power under Section 482 of the Code and  Section  320  does  not
limit or affect the powers of the High Court under Section  482.
Can  it  be  said  that  by  quashing  criminal  proceedings  in
B.S.Joshi, Nikhil Merchant, Manoj Sharma and  Shiji  this  Court
has compounded the non-compoundable offences indirectly?  We  do
not  think  so.  There  does  exist  the   distinction   between
compounding of an offence under Section 320 and  quashing  of  a
criminal case by the High Court in exercise  of  inherent  power
under Section 482. The two powers  are  distinct  and  different
although the ultimate consequence may be the same viz. acquittal
of the accused or dismissal of indictment.”

13.   Apart from narrating the interplay of Section  320  and  Section
482 of the Code in the manner aforesaid, the Court also described  the
extent of power under Section 482 of the Code in quashing the criminal
proceedings in those cases where the parties had  settled  the  matter
although the offences are not compoundable.  In the first instance  it
was emphasized that the power under Sec. 482 of the Code is not to  be
resorted to, if there is specific provision in the Code for  redressal
of the grievance of an aggrieved party.  It should be  exercised  very
sparingly and should not be exercised as against the  express  bar  of
law engrafted in any other provision of  the  Code.   The  Court  also
highlighted that in different situations, the inherent  power  may  be
exercised  in  different  ways  to  achieve  its  ultimate  objective.
Formation of opinion by the High Court before  it  exercises  inherent
power under Section 482 on either  of  the  twin  objectives,  (i)  to
prevent abuse of the process of any court, or (ii) to secure the  ends
of justice, is a sine qua non.

14.   As to under what circumstances the criminal proceedings in a non-
compoundable case be quashed when there is a  settlement  between  the
parties, the Court provided the following guidelines:

“Where the High Court quashes a criminal proceeding having
regard to the facts 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 flavor 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.”

Thereafter, the Court summed up the legal position in the  following
words:

“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  plentitude
with no statutory limitation but  it  has  to  be  exercised  in
accord with the guidelines engrafted in such power viz.: (i)  to
secure the ends of justice, or  (ii)  to  prevent  abuse  f  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  the  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 predominatingly
civil flavor 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,  the
High Court may quash the 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
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.”

15. The Court was categorical that in respect of serious  offences  or
other offences of mental depravity or offence of merely dacoity  under
special statute, like the Prevention of Corruption Act or the offences
committed by Public Servant while working in that capacity.  The  mere
settlement between the parties would not be  a  ground  to  quash  the
proceedings by the High Court  and  inasmuch  as  settlement  of  such
heinous crime cannot have imprimatur of the Court.

16.   The question is as to whether  offence  under  Section  307  IPC
falls within the aforesaid parameters.  First limb of this question is
to reflect on the nature of  the  offence.   The  charge  against  the
accused in such cases is that he had attempted to  take  the  life  of
another person (victim).  On this touchstone, should  we  treat  it  a
crime of serious nature so as to  fall  in  the  category  of  heinous
crime, is the poser.

17.   Finding an answer to this question  becomes  imperative  as  the
philosophy and jurisprudence of sentencing is based thereupon.  If  it
is  heinous crime of serious nature then it has to  be  treated  as  a
crime against the society and not against the individual  alone.  Then
it becomes the solemn duty of the State to punish the crime doer. Even
if there is a settlement/compromise between the perpetrator  of  crime
and the victim, that is of no consequence. Law prohibits certain  acts
and/or conduct and treats them as  offences.   Any  person  committing
those acts is subject to penal consequences which may  be  of  various
kind. Mostly, punishment provided for committing  offences  is  either
imprisonment or monetary fine or both.  Imprisonment can  be  rigorous
or simple in nature.   Why  those  persons  who  commit  offences  are
subjected to such penal  consequences?  There  are  many  philosophies
behind such  sentencing  justifying  these  penal  consequences.   The
philosophical/jurisprudential  justification   can   be   retribution,
incapacitation,    specific    deterrence,     general     deterrence,
rehabilitation, or restoration.  Any of the above   or  a  combination
thereof can be the goal of sentencing.  Whereas in various  countries,
sentencing guidelines are provided, statutorily  or  otherwise,  which
may guide Judges for awarding specific sentence, in India  we  do  not
have any such sentencing policy till date.   The  prevalence  of  such
guidelines may not only aim at   achieving consistencies  in  awarding
sentences in different cases, such guidelines normally  prescribe  the
sentencing policy as well  namely  whether  the  purpose  of  awarding
punishment in a particular case is more of a deterrence or retribution
or rehabilitation etc.

18.   In the absence of such guidelines in India, Courts go  by  their
own perception about the philosophy behind the prescription of certain
specified penal consequences for particular nature of crime. For  some
deterrence and/or vengeance becomes  more  important  whereas  another
Judge may be more influenced by rehabilitation or restoration  as  the
goal of sentencing.  Sometimes, it would  be  a  combination  of  both
which would weigh in the mind of the Court in  awarding  a  particular
sentence. However, that may be question of quantum.
What follows from the discussion behind the purpose of  sentencing  is
that if a particular crime is to  be  treated  as  crime  against  the
society  and/or  heinous  crime,  then  the  deterrence  theory  as  a
rationale for punishing the offender  becomes  more  relevant,  to  be
applied in such cases.  Therefore, in respect of such  offences  which
are treated against the society, it becomes the duty of the  State  to
punish the offender.  Thus, even when there is  a  settlement  between
the offender and the victim, their will would not prevail as  in  such
cases the matter is  in  public  domain.   Society  demands  that  the
individual offender  should  be  punished  in  order  to  deter  other
effectively as it amounts to greatest good of the greatest  number  of
persons in a  society.   It  is  in  this  context  that  we  have  to
understand the scheme/philosophy behind Section 307 of the Code.

19.   We would like to expand this principle in some more  detail.  We
find, in practice and in reality, after recording the  conviction  and
while awarding the sentence/punishment the Court is generally governed
by any or all or combination of the aforesaid factors.  Sometimes,  it
is the deterrence theory which prevails in the  minds  of  the  Court,
particularly in those cases where the crimes committed are heinous  in
nature or depicts depravity, or lack  morality.  At  times  it  is  to
satisfy the element of  “emotion”  in  law  and  retribution/vengeance
becomes the guiding factor.  In any case, it cannot be denied that the
purpose  of  punishment  by  law   is   deterrence,   constrained   by
considerations  of  justice.  What,  then,  is  the  role  of   mercy,
forgiveness and compassion in law?  These are by no means  comfortable
questions and even the answers may not be comforting.   There  may  be
certain cases which are too obvious  namely  cases  involving  heinous
crime with element of criminality against the society and not  parties
inter-se.  In such cases, the  deterrence  as  purpose  of  punishment
becomes paramount and even if the victim or his relatives  have  shown
the virtue and gentility, agreeing to forgive the culprit,  compassion
of that private party would not move the court in accepting  the  same
as larger and more important public policy of showing the iron hand of
law to the wrongdoers, to reduce the commission of such  offences,  is
more important. Cases of murder, rape, or other sexual  offences  etc.
would clearly fall in this category.  After all, justice requires long
term vision.  On the other hand, there may be, offences falling in the
category where “correctional” objective of criminal law would have  to
be given more weightage  in  contrast  with  “deterrence”  philosophy.
Punishment, whatever else may be, must be fair and conducive  to  good
rather than further evil.  If in a particular case the Court is of the
opinion that the settlement between the parties  would  lead  to  more
good; better relations between them; would prevent further  occurrence
of such encounters between the parties, it may hold settlement  to  be
on a better pedestal.  It  is  a  delicate  balance  between  the  two
inflicting interests which is  to  be  achieved  by  the  Court  after
examining all these parameters and then deciding as to which course of
action it should take in a particular case.

20.   We may comment, at this stage, that in so far as the judgment in
the case of Bhandari (supra)  is  concerned,  undoubtedly  this  Court
observed that since offence under Section 307 is not  compoundable  in
terms of Section 320(9) of the Cr.P.C., compounding of the offence was
out of question.  However, apart from this observation, this aspect is
not discussed in detail.  Moreover, on reading para  12  of  the  said
judgment, it is clear that one finds that counsel for the appellant in
that case had not contested the conviction of the  appellant  for  the
offence under Section 307 IPC, but had mainly pleaded for reduction of
sentence by projecting mitigating circumstances.

21.   However,  we  have  some  other  cases  decided  by  this  Court
commenting upon the nature of offence under Section 307  of  IPC.   In
Dimpey  Gujral  case  (supra),   FIR   was   lodged   under   sections
147,148,149,323,307,552  and  506  of  the  IPC.    The   matter   was
investigated and final report was presented to the Court under Section
173 of the Cr.P.C. The trial court had even framed  the  charges.   At
that stage, settlement was arrived  at  between  parties.   The  court
accepted the settlement and   quashed the  proceedings,  relying  upon
the earlier judgment of this Court in Gian Singh vs. State of Punjab &
Anr. 2012 AIR SCW 5333 wherein the court had  observed  that  inherent
powers under section 482 of the Code are of wide  plentitude  with  no
statutory limitation and the guiding factors are: (1)  to  secure  the
needs of justice, or (2) to prevent abuse of  process  of  the  court.
While doing so, commenting upon the offences stated in  the  FIR,  the
court observed:

“Since the  offences  involved  in  this  case  are  of  a
personal nature and are not offences against the society, we had
enquired with learned counsel appearing for the parties  whether
there is any possibility of a settlement.  We are happy to  note
that due to efforts made by learned counsel, parties  have  seen
reason and have entered into a compromise.”

This Court, thus, treated such offences including  one  under  section
307, IPC were of a  personal  nature  and  not  offences  against  the
society.

22.    On the other hand, we have few  judgments  wherein  this  Court
refused to quash the proceedings in FIR registered under  section  307
IPC etc. on the ground that offence under section 307 was  of  serious
nature and would fall in the category of heinous crime.  In  the  case
of Shiji vs. Radhika & Anr. (2011) 10 SCC 705 the  Court  quashed  the
proceedings relating to an offence under  section  354  IPC  with  the
following observations:

“We have heard learned counsel for the parties and perused
the impugned order.  Section  320  of  the  Cr.P.C.  enlists
offences that are compoundable with the  permission  of  the
Court before whom the prosecution is pending and those  that
can be compounded even without such permission.  An  offence
punishable under Section 354 of  the  IPC  is  in  terms  of
Section 320(2) of the Code compoundable at the  instance  of
the woman against whom the offence  is  committed.  To  that
extent, therefore, there is no difficulty in either quashing
the proceedings or compounding  the  offence  under  Section
354, of which the appellants are accused, having  regard  to
the fact that the alleged victim of the offence has  settled
the  matter  with  the  alleged   assailants.   An   offence
punishable  under  Section  394   IPC   is   not,   however,
compoundable with or without the  permission  of  the  Court
concerned. The question is whether the High Court could  and
ought to have exercised its power under section 482 the said
provision in the light of the compromise  that  the  parties
have arrived at.”

23.   In a recent judgment in the  case  of  State  of  Rajasthan  vs.
Shambhu Kewat & Ors.  2013 (14) SCALE 235,  this  very  Bench  of  the
Court was faced with the situation where the High Court  had  accepted
the settlement between the parties in an  offence  under  Section  307
read with Section 34 IPC and set the accused at  large  by  acquitting
them.  The settlement was arrived at during  the  pendency  of  appeal
before the High Court against the order of conviction and sentence  of
the Sessions Judge holding the accused persons guilty of  the  offence
under Section307/34 IPC.  Some earlier cases of compounding of offence
under Section 307 IPC were  taken  note  of,  noticing  under  certain
circumstances, the Court  had  approved  the  compounding  whereas  in
certain other cases such a course of action was not accepted.  In that
case, this Court took the view that High Court was  not  justified  in
accepting the compromise and  setting  aside  the  conviction.   While
doing so, following discussion ensued:

“We find, in this case, such a situation does  not  arise.
In the instant case, the incident had  occurred  on  30.10.2008.
The trial court held  that  the  accused  persons,  with  common
intention, went to the shop of the injured Abdul Rashid on  that
day armed with iron rod and a strip of iron and, in  furtherance
of their common intention, had caused serious  injuries  on  the
body of Abdul Rashid, of which injury number 4 was on his  head,
which was of a serious nature.

Dr.Rakesh Sharma, PW5, had stated that out of the injuries
caused to Abdul Rashid, injury No.4 was an injury  on  the  head
and that injury was “grievous and fatal for life”. PW8, Dr. Uday
Bhomik, also opined that a grievous injury  was  caused  on  the
head of Abdul  Rashid.  DR.  Uday  conducted  the  operation  on
injuries of Abdul Rashid as a Neuro Surgeon and fully  supported
the opinion expressed by PW5 Dr. Rakesh Sharma that injury  No.4
was “grievous and fatal for life”.

We notice that the gravity of the injuries was taken  note
of by the Sessions Court and it had awarded the sentence  of  10
years rigorous imprisonment for  the  offence  punishable  under
Section 307 IPC, but not by the High Court. The High  Court  has
completely overlooked the various principles laid down  by  this
Court in Gian Singh (Supra), and  has  committed  a  mistake  in
taking the view that, the injuries were caused on  the  body  of
Abdul Rashid in a fight occurred at the spur and the heat of the
moment. It has been categorically held by  this  Court  in  Gian
Singh (supra) that the Court, while exercising the  power  under
Section 482, must have “due regard to the nature and gravity  of
the crime” and “the social  impact”.  Both  these  aspects  were
completely overlooked by the High Court. The  High  Court  in  a
cursory manner, without application of  mind,  blindly  accepted
the statement  of  the  parties  that  they  had  settled  their
disputes and differences and took the view that it was  a  crime
against “an individual”, rather than  against  “the  society  at
large”.

We are not prepared to say that the crime alleged to  have
been committed by the accused persons was  a  crime  against  an
individual, on the other hand it was a crime against the society
at large. Criminal law is designed as a mechanism for  achieving
social control and its purpose is the regulation of conduct  and
activities within the society. Why Section 307 IPC is held to be
non-compoundable, because the Code has identified which  conduct
should be brought within the ambit of non-compoundable offences.
Such provisions are not meant, just to protect  the  individual,
but the society as a whole. High Court was not right in thinking
that it was only an injury to the person and since  the  accused
persons had received the monetary compensation and  settled  the
matter, the crime as  against  them  was  wiped  off.   Criminal
justice system has a larger objective to achieve, that is safety
and protection of the people at large and it would be  a  lesson
not only to the offender, but to the  individuals  at  large  so
that such crimes would not be committed by  any  one  and  money
would not be a substitute for the crime  committed  against  the
society. Taking a lenient view on a  serious  offence  like  the
present, will  leave  a  wrong  impression  about  the  criminal
justice system and will encourage further criminal  acts,  which
will endanger the  peaceful  co-existence  and  welfare  of  the
society at large.”

24.    Thus, we find that in certain  circumstances,  this  Court  has
approved the quashing of proceedings under section 307,IPC whereas  in
some other cases, it is held  that as the offence is of serious nature
such proceedings cannot be quashed.  Though in each of  the  aforesaid
cases the view taken by this Court may be justified on its own  facts,
at the same time  this  Court  owes  an  explanation  as  to  why  two
different approaches are adopted in various cases.  The  law  declared
by this Court in the form of judgments becomes binding  precedent  for
the High Courts and the subordinate courts, to  follow  under  Article
141 of the Constitution of India.  Stare Decisis  is  the  fundamental
principle of judicial decision making which requires  ‘certainty’  too
in law  so that in a given set of facts the course of action which law
shall take is discernable and predictable.  Unless that  is  achieved,
the very doctrine of stare decisis will lose  its  significance.   The
related objective of the doctrine of stare decisis is to put a curb on
the personal preferences and priors of individual Judges.  In  a  way,
it achieves equality of treatment as well, inasmuch as  two  different
persons faced with similar  circumstances  would  be  given  identical
treatment at the hands of law.  It has, therefore,  support  from  the
human sense of justice as well.  The force of precedent in the law  is
heightened, in the words of Karl Llewellyn, by “that  curious,  almost
universal sense of justice which urges that all men are to be  treated
alike in like circumstances”.

25.   As there is a close relation between the equality  and  justice,
it should be clearly discernible as to how the two prosecutions  under
Section 307 IPC are  different  in  nature  and  therefore  are  given
different treatment.  With  this  ideal  objective  in  mind,  we  are
proceeding to discuss the subject at length.    It is for this  reason
we deem it appropriate to lay down some distinct, definite  and  clear
guidelines which can be kept in mind by the High Courts to take a view
as to under what circumstances it should accept the settlement between
the parties and quash the proceedings and under what circumstances  it
should refrain from doing so.  We make  it  clear  that  though  there
would be a general discussion in this behalf as well,  the  matter  is
examined in the context of offences under Section 307 IPC.

26.         The two rival parties have amicably settled  the  disputes
between themselves and buried the hatchet. Not  only  this,  they  say
that since they are neighbours, they want to live like good neighbours
and that was the  reason  for  restoring  friendly  ties.  In  such  a
scenario, should the court give its imprimatur to such  a  settlement.
The answer depends on various incidental aspects  which  need  serious
discourse.
The Legislators has categorically recognized that those offences which
are covered  by  the  provisions  of  section  320  of  the  Code  are
concededly those not only do not fall within the category  of  heinous
crime but also which are personal between the parties. Therefore, this
provision recognizes whereas there is a compromise between the parties
the Court is to act at the said compromise and quash the  proceedings.
However, even in respect of such offences not covered within the  four
corners of Section 320 of the Code, High Court is  given  power  under
Section 482 of the Code to accept the compromise between  the  parties
and quash the proceedings.  The guiding factor is as  to  whether  the
ends of justice  would  justify  such  exercise  of  power,  both  the
ultimate consequences may be acquittal  or  dismissal  of  indictment.
This is so recognized in various judgments taken note of above.

27.          In the case of Dimpey  Gujral  (supra),  observations  of
this Court to the effect that offences involved in that case were  not
offences against the society. It included charge under Section 307 IPC
as well.  However,  apart  from  stating  so,  there  is  no  detained
discussion on this aspect. Moreover, it is  the  other  factors  which
prevailed with the Court to accept  the  settlement  and  compound  he
offence, as noted above while discussing this case. On the other hand,
in Shambhu Kewat  (supra),  after  referring  to  some  other  earlier
judgments, this Court opined that commission of offence under  Section
307 IPC would be crime against the society at large, and not  a  crime
against an individual only. We find that in most of  the  cases,  this
view is taken. Even on first principle, we find  that  an  attempt  to
take the life of another person has to be treated as a  heinous  crime
and against the society.

28.   Having said so, we would hasten to  add  that  though  it  is  a
serious offence as the accused person(s) attempted to take the life of
another person/victim, at the same time the court cannot be  oblivious
to hard realities that many times whenever there is a quarrel  between
the parties leading to physical commotion and sustaining of injury  by
either or both the parties, there is a tendency to give it a slant  of
an offence under Section 307 IPC  as  well.  Therefore,  only  because
FIR/Charge-sheet incorporates the provision of Section 307  IPC  would
not, by itself, be a ground to reject the petition under  section  482
of the Code and refuse to accept the settlement between  the  parties.
We are, therefore, of the opinion that  while  taking  a  call  as  to
whether compromise in such cases should be effected or not,  the  High
Court should go by the nature of injury sustained, the portion of  the
bodies where the injuries were inflicted (namely whether injuries  are
caused at the vital/delicate parts of the  body)  and  the  nature  of
weapons used etc.  On that basis, if it  is  found  that  there  is  a
strong possibility of proving the charge under Section 307  IPC,  once
the evidence to that effect is led  and  injuries  proved,  the  Court
should not accept settlement between the parties.  On the other  hand,
on the basis of prima facie assessment of the aforesaid circumstances,
if the High Court forms an opinion that provisions of Section 307  IPC
were unnecessary included in the charge sheet, the  Court  can  accept
the plea of compounding of the offence based on settlement between the
parties.

29.   At this juncture, we would like also to add that the  timing  of
settlement would also play a  crucial  role.   If  the  settlement  is
arrived at immediately after the alleged commission  of  offence  when
the matter is  still  under  investigation,  the  High  Court  may  be
somewhat  liberal  in  accepting  the  settlement  and  quashing   the
proceedings/investigation.  Of course, it would be after looking  into
the  attendant  circumstances  as  narrated  in  the  previous   para.
Likewise, when challan is  submitted  but  the  charge  has  not  been
framed, the High Court may exercise  its  discretionary  jurisdiction.
However, at this stage, as mentioned above, since the  report  of  the
I.O. under Section 173,Cr.P.C. is also  placed  before  the  Court  it
would become the bounding duty of the Court to go into the said report
and the evidence collected, particularly the medical evidence relating
to injury etc. sustained by the victim.  This aspect,  however,  would
be examined along with another  important  consideration,  namely,  in
view of settlement between the parties, whether it would be unfair  or
contrary  to  interest  of  justice  to  continue  with  the  criminal
proceedings and whether possibility of conviction is remote and bleak.
If the Court finds the answer to this question in  affirmative,  then
also such a case would be a fit case for the High Court  to  give  its
stamp of approval to the compromise arrived at  between  the  parties,
inasmuch as in such  cases  no  useful  purpose  would  be  served  in
carrying out the criminal proceedings which in  all  likelihood  would
end in acquittal, in any case.

30.   We have found that  in  certain  cases,  the  High  Courts  have
accepted the compromise between the parties when the matter in  appeal
was pending before the High Court against the conviction  recorded  by
the trial court.  Obviously, such cases are those  where  the  accused
persons have been found guilty by the trial  court,  which  means  the
serious charge of Section 307 IPC has been  proved  beyond  reasonable
doubt at the level of  the  trial  court.   There  would  not  be  any
question of accepting compromise and acquitting  the  accused  persons
simply because the private parties have buried the hatchet.

31.   In view of the aforesaid discussion, we sum up and lay down  the
following principles by which the High Court would be guided in giving
adequate  treatment  to  the  settlement  between  the   parties   and
exercising its power under Section 482 of the Code while accepting the
settlement and quashing the proceedings  or  refusing  to  accept  the
settlement with direction to continue with the criminal proceedings:

(I) Power conferred under Section 482  of  the  Code  is  to  be
distinguished from the power which lies in the Court to  compound  the
offences under Section 320 of the Code. No doubt, under Section 482 of
the Code, the High Court has inherent  power  to  quash  the  criminal
proceedings even in those cases which are not compoundable, where  the
parties have settled the  matter  between  themselves.  However,  this
power is to be exercised sparingly and with caution.

(II)When the parties have reached the  settlement  and  on  that
basis petition for quashing the criminal  proceedings  is  filed,  the
guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to  form  an  opinion  on
either of the aforesaid two objectives.

(III) Such a power is not be  exercised  in  those  prosecutions
which involve heinous and serious  offences  of  mental  depravity  or
offences like murder, rape,  dacoity,  etc.   Such  offences  are  not
private in nature and have a serious impact on society. Similarly, for
offences alleged to have been committed under special statute like the
Prevention of Corruption Act  or  the  offences  committed  by  Public
Servants while working in that capacity are not to be  quashed  merely
on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal  cases  having  overwhelmingly
and pre-dominantly civil character, particularly those arising out  of
commercial transactions or arising out of matrimonial relationship  or
family disputes should be quashed when the parties have resolved their
entire             disputes             among              themselves.
(V) While exercising its powers, the High Court is to  examine  as  to
whether  the  possibility  of  conviction  is  remote  and  bleak  and
continuation  of  criminal  cases  would  put  the  accused  to  great
oppression and prejudice and extreme injustice would be caused to  him
by        not        quashing        the        criminal        cases.
(VI) Offences under Section 307 IPC would fall in the
category of heinous and  serious  offences  and  therefore  is  to  be
generally treated as crime against the society  and  not  against  the
individual alone. However, the High Court would not rest its  decision
merely because there is a mention of Section 307 IPC in the FIR or the
charge is framed under this provision. It would be open  to  the  High
Court to examine as to whether incorporation of  Section  307  IPC  is
there for the sake of it or the prosecution has  collected  sufficient
evidence, which if proved, would lead  to  proving  the  charge  under
Section 307 IPC. For this purpose, it would be open to the High  Court
to go by the nature  of  injury  sustained,  whether  such  injury  is
inflicted on the vital/delegate parts of the body, nature  of  weapons
used etc. Medical report in respect of injuries suffered by the victim
can generally be the guiding factor. On the basis of this prima  facie
analysis, the High Court can examine as to whether there is  a  strong
possibility of conviction or the chances of conviction are remote  and
bleak. In the former case it can refuse to accept the  settlement  and
quash the criminal proceedings whereas in the later case it  would  be
permissible for the High Court to  accept  the  plea  compounding  the
offence based on complete settlement  between  the  parties.  At  this
stage, the Court can also be swayed by the fact  that  the  settlement
between the parties is going to result in harmony between  them  which
may improve their future relationship.

(VII) While deciding whether to exercise its power under Section
482 of the Code or not, timings of settlement  play  a  crucial  role.
Those cases where the settlement is arrived at immediately  after  the
alleged  commission  of  offence  and  the  matter  is   still   under
investigation,  the  High  Court  may  be  liberal  in  accepting  the
settlement to quash  the  criminal  proceedings/investigation.  It  is
because of the reason that at this stage the investigation is still on
and even the charge sheet has not been filed.  Likewise,  those  cases
where the charge is framed but the evidence is yet  to  start  or  the
evidence  is  still  at  infancy  stage,  the  High  Court  can   show
benevolence in exercising its powers favourably, but after prima facie
assessment of the circumstances/material mentioned above. On the other
hand, where the prosecution evidence is almost complete or  after  the
conclusion of the evidence the matter is at  the  stage  of  argument,
normally the High Court should refrain from exercising its power under
Section 482 of the Code, as in such cases the trial court would be  in
a position to decide  the  case  finally  on  merits  and  to  come  a
conclusion as  to  whether  the  offence  under  Section  307  IPC  is
committed or not. Similarly, in those cases where  the  conviction  is
already recorded by the trial court and the matter is at the appellate
stage before the High Court, mere compromise between the parties would
not be a ground to accept the  same  resulting  in  acquittal  of  the
offender who has already been  convicted  by  the  trial  court.  Here
charge is proved under Section  307  IPC  and  conviction  is  already
recorded of a heinous crime and, therefore, there is  no  question  of
sparing a convict found guilty of such a crime.

32.    After  having  clarified  the  legal  position  in  the  manner
aforesaid, we proceed to discuss the case at hand.

33.   In the present case, FIR No.121 dated 14.7.2010  was  registered
under  Section  307/324/323/34  IPC.   Investigation  was   completed,
whereafter challan was presented in the court against  the  petitioner
herein.  Charges have also been framed; the case is at  the  stage  of
recording  of  evidence.   At  this  juncture,  parties  entered  into
compromise on the basis of which petition under  Section  482  of  the
Code was filed by the  petitioners  namely  the  accused  persons  for
quashing of the criminal proceedings under the said FIR.  As  per  the
copy of the settlement which was annexed along with the petition,  the
compromise  took  place  between  the  parties   on   12.7.2013   when
respectable members of the Gram Panchayat held  a  meeting  under  the
Chairmanship of Sarpanch.  It is stated that on  the  intervention  of
the  said  persons/Panchayat,  both  the  parties  were   agreed   for
compromise and have also decided to live with  peace  in  future  with
each other.  It was argued that since the parties have decided to keep
harmony between the parties so that in future they are  able  to  live
with peace and love and they are the residents of  the  same  village,
the High Court should have accepted the said compromise and quash  the
proceedings.

34.   We find from the impugned  order  that  the  sole  reason  which
weighed with the High Court  in  refusing  to  accept  the  settlement
between the parties was the nature of  injuries.  If  we  go  by  that
factor alone, normally we would tend to agree with  the  High  Court’s
approach. However, as pointed out hereinafter,  some  other  attendant
and inseparable circumstances also need  to  be  kept  in  mind  which
compel us to take a different view.

35.   We have gone through the FIR as well which was recorded  on  the
basis of statement of the complainant/victim.  It gives an  indication
that the complainant was attacked allegedly  by  the  accused  persons
because of some previous dispute between the parties, though nature of
dispute etc. is not  stated  in  detail.  However,  a  very  pertinent
statement appears on  record  viz.,  “respectable  persons  have  been
trying for    a compromise up till now, which could not be finalized”.
This becomes an important aspect.  It appears that  there  have  been
some disputes which led to  the  aforesaid  purported  attack  by  the
accused on the complainant. In this context  when  we  find  that  the
elders of the village, including Sarpanch, intervened  in  the  matter
and the parties have not only buried their hatchet but have decided to
live peacefully in future, this becomes  an  important  consideration.
The evidence is yet to be led in the Court. It has not  even  started.
In view of compromise between parties, there is a  minimal  chance  of
the witnesses coming forward in support of the prosecution case.  Even
though nature of injuries can still be established  by  producing  the
doctor as witness who conducted medical  examination,  it  may  become
difficult to prove as to who caused these  injuries.  The  chances  of
conviction, therefore, appear to be remote. It  would,  therefore,  be
unnecessary to drag these proceedings. We, taking  all  these  factors
into  consideration  cumulatively,  are  of  the  opinion   that   the
compromise  between  the  parties  be  accepted   and   the   criminal
proceedings arising out of FIR No.121 dated 14.7.2010 registered  with
Police Station LOPOKE, District Amritsar Rural be  quashed.  We  order
accordingly.

36.       Appeal is allowed. No costs.

………………………………J.
(K.S.Radhakrishnan)

………………………………J.
(A.K.Sikri)
New Delhi,
March 27, 2014

 

We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors  into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with Police Station LOPOKE, District Amritsar Rural be quashed.

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[REPORTABLE]
IN THE SUPREME COURT OF INDIA CRIMINAL
APPELLATE JURISDICTION CRIMINAL APPEAL NO.686/2014
(arising out of S.L.P.(Criminal) No.9547 of 2013)
Narinder Singh & Ors. ……Appellants
Vs. State of Punjab & Anr. …Respondents
J U D G M E N T

A.K.SIKRI,J. 1. The present Special Leave Petition has been preferred against the impugned judgment/final order dated 8.10.2013 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Miscellaneous Petition No.27343/2013. It was a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the “Code”) for quashing of FIR No.121/14.7.2010 registered under Sections 307/324/323/34,IPC, on the basis of compromise dated 22.7.2013 entered into between the petitioners ( who are accused in the said FIR) and respondent No.2 (who is the complainant). The High Court has refused to exercise its extraordinary discretion invoking the provisions of Section 482 of the Code on the ground that four injuries were suffered by the complainant and as per the opinion of the Doctor, injury No.3 were serious in nature. The High Court, thus, refused to accept 1 Page 2 the compromise entered into between the parties, the effect whereof would be that the petitioners would face trial in the said FIR.

2. Leave granted.

3. We have heard counsel for the parties at length.

4. It may be stated at the outset that the petitioners herein, who are three in number, have been charged under various provisions of the IPC including for committing offence punishable under Section 307, IPC i.e. attempt to commit murder. FIR No.121/14.7.2010 was registered. In the aforesaid FIR, the allegations against the petitioners are that on 9.7.2010 at 7.00 A.M. while respondent No.2 was going on his motorcycle to bring diesel from village Lapoke, Jasbir Singh, Narinder Singh both sons of Baldev Singh and Baldev Singh son of Lakha Singh attacked him and injured him. Respondent No.2 was admitted in Shri Guru Nanak Dev Hospital, Amritsar. After examination the doctor found four injuries on his person. Injury No.1 to 3 are with sharp edged weapons and injury No.4 is simple. From the statement of injured and MLR’s report, an FIR under sections 323/324/34 IPC was registered. After X-ray report relating to injury No.3, section 307 IPC was added in the FIR

5. After the completion of investigation, challan has been presented in the Court against the petitioners and charges have also been framed. 2 Page 3 Now the case is pending before the Ld.Trial Court, Amritsar, for evidence.

6. During the pendency of trial proceedings, the matter has been compromised between the petitioners as well as the private respondent with the intervention of the Panchayat on 12.07.2013. It is clear from the above that three years after the incident, the parties compromised the matter with intervention of the Panchayat of the village.

7. It is on the basis of this compromise, the petitioners moved aforesaid criminal petition under section 482 of the Code for quashing of the said FIR. As per the petitioners, the parties have settled the matter, as they have decided to keep harmony between them to enable them to live with peace and love. The compromise records that they have no grudge against each other and the complainant has specifically agreed that he has no objection if the FIR in question is quashed. Further, both the parties have undertaken not to indulge in any litigation against each other and withdraw all the complaints pending between the parties before the court. As they do not intend to proceed with any criminal case against each other, on that basis the submission of the petitioners before the High Court was that the continuance of the criminal proceedings in the aforesaid FIR will be a futile exercise 3 Page 4 and mere wastage of precious time of the court as well as investigating agencies.

8. The aforesaid submission, however, did not impress the High Court as the medical report depicts the injuries to be of grievous nature. The question for consideration, in these circumstances, is as to whether the court should have accepted the compromise arrived at between the parties and quash the FIR as well as criminal proceedings pending against the petitioner.

9. The ld. counsel for the State has supported the aforesaid verdict of the High Court arguing that since offence under Section 307 is noncompoundable, the respondents could not have been acquitted only because of the reason that there was a compromise/settlement between the parties. In support, the learned counsel for the respondent-State has relied upon the judgment of this Court in the case of Rajendra Harakchand Bhandari vs. State of Maharashtra (2011) 13 SCC 311 wherein this Court held that since offence under Section 307 is not compoundable, even when the parties had settled the matter, compounding of the offence was out of question. Said settlement along with other extenuating circumstances was only taken as the ground for reduction of the sentence in the following manner: “We must immediately state that the offence under Section 307 is not compoundable in terms of Section 320(9) of the Code of Criminal Procedure, 1973 and, therefore, compounding of the offence in 4 Page 5 the present case is out of question. However, the circumstances pointed out by the learned Senior Counsel do persuade us for a lenient view in regard to the sentence. The incident occurred on 17.5.1991 and it is almost twenty years since then. The appellants are agriculturists by occupation and have no previous criminal background. There has been reconciliation amongst parties; the relations between the appellants and the victim have become cordial and prior to the appellants’ surrender, the parties have been living peacefully in the village. The appellants have already undergone the sentence of more than two-and-a half years. Having regard to those circumstances, we are satisfied that ends of justice will be met if the substantive sentence awarded to the appellants is reduced to the period already undergone while maintaining the amount of fine. Consequently, while confirming the conviction of the appellants for the offences punishable under Section 307 read with Section 34, Section 332 read with Section 34 and Section 353 read with Section 34, the substantive sentence awarded to them by the High Court is reduced to the period already undergone. The fine amount and the default stipulation remain as it is.”

10. The learned counsel for the appellant, on the other hand, submitted that merely because an offence is non-compoundable under Section 320 of the Code would not mean that the High Court is denuded of its power to quash the proceedings in exercising its jurisdiction under Section 482 of the Cr.P.C. He argued that Section 320(9) of the Code cannot limit or affect the power of the High Court under Section 482 of the Cr.P.C. Such a power is recognized by the Supreme Court in catena of judgments. He further submitted that having regard to the circumstances in the present case where the fight had occurred on the 5 Page 6 spot in the heat of the moment inasmuch as both sides were verbally fighting when the petitioners had struck the victim, this assault was more of a crime against the individual than against the society at large. He further submitted that this Court in Dimpey Gujral v. Union Territory through Administrator 2012 AIR SCW 5333 had quashed the FIR registered under sections 147,148,149,323,307,452 and 506 of the IPC. 11. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. In so far as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of these powers were described by this Court in B.S.Joshi vs. State of Haryana (2003) 4 SCC 675 which has been followed and 6 Page 7 further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter. 12. At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once, it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitary and squarely by the compromise between the parties, in so far as power of quashing under Section 482 of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC 303. Justice Lodha, speaking for the Court, explained the difference between the two provisions in the following manner: “Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal 7 Page 8 proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment.” 13. Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. In the first instance it was emphasized that the power under Sec. 482 of the Code is not to be resorted to, if there is specific provision in the Code for redressal of the grievance of an aggrieved party. It should be exercised very sparingly 8 Page 9 and should not be exercised as against the express bar of law engrafted in any other provision of the Code. The Court also highlighted that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non. 14. As to under what circumstances the criminal proceedings in a non-compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: “Where the High Court quashes a criminal proceeding having regard to the facts 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 9 Page 10 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 flavor 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.” Thereafter, the Court summed up the legal position in the following words: “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 plentitude with no statutory limitation but it has to be exercised in accord with the guidelines engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse f 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 10 Page 11 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 the 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 predominatingly civil flavor 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, the High Court may quash the 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 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.” 11 Page 12 15. The Court was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by Public Servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such heinous crime cannot have imprimatur of the Court.

16. The question is as to whether offence under Section 307 IPC falls within the aforesaid parameters. First limb of this question is to reflect on the nature of the offence. The charge against the accused in such cases is that he had attempted to take the life of another person (victim). On this touchstone, should we treat it a crime of serious nature so as to fall in the category of heinous crime, is the poser.

17. Finding an answer to this question becomes imperative as the philosophy and jurisprudence of sentencing is based thereupon. If it is heinous crime of serious nature then it has to be treated as a crime against the society and not against the individual alone. Then it becomes the solemn duty of the State to punish the crime doer. Even if there is a settlement/compromise between the perpetrator of crime and the victim, that is of no consequence. Law prohibits certain acts and/or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kind. 12 Page 13 Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why those persons who commit offences are subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date. The prevalence of such guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well namely whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation etc.

18. In the absence of such guidelines in India, Courts go by their own perception about the philosophy behind the prescription of certain specified penal consequences for particular nature of crime. For some deterrence and/or vengeance becomes more important whereas another Judge may be more influenced by rehabilitation or restoration as the goal of sentencing. Sometimes, it would be a combination of both which would weigh in the mind of the Court in awarding a 13 Page 14 particular sentence. However, that may be question of quantum. What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. It is in this context that we have to understand the scheme/philosophy behind Section 307 of the Code

. 19. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of “emotion” in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment 14 Page 15 by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter-se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where “correctional” objective of criminal law would have to be given more weightage in contrast with “deterrence” philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after 15 Page 16 examining all these parameters and then deciding as to which course of action it should take in a particular case.

20. We may comment, at this stage, that in so far as the judgment in the case of Bhandari (supra) is concerned, undoubtedly this Court observed that since offence under Section 307 is not compoundable in terms of Section 320(9) of the Cr.P.C., compounding of the offence was out of question. However, apart from this observation, this aspect is not discussed in detail. Moreover, on reading para 12 of the said judgment, it is clear that one finds that counsel for the appellant in that case had not contested the conviction of the appellant for the offence under Section 307 IPC, but had mainly pleaded for reduction of sentence by projecting mitigating circumstances.

21. However, we have some other cases decided by this Court commenting upon the nature of offence under Section 307 of IPC. In Dimpey Gujral case (supra), FIR was lodged under sections 147,148,149,323,307,552 and 506 of the IPC. The matter was investigated and final report was presented to the Court under Section 173 of the Cr.P.C. The trial court had even framed the charges. At that stage, settlement was arrived at between parties. The court accepted the settlement and quashed the proceedings, relying upon the earlier judgment of this Court in Gian Singh vs. State of Punjab & Anr. 2012 AIR SCW 5333 wherein the court had observed that inherent powers under 16 Page 17 section 482 of the Code are of wide plentitude with no statutory limitation and the guiding factors are: (1) to secure the needs of justice, or (2) to prevent abuse of process of the court. While doing so, commenting upon the offences stated in the FIR, the court observed: “Since the offences involved in this case are of a personal nature and are not offences against the society, we had enquired with learned counsel appearing for the parties whether there is any possibility of a settlement. We are happy to note that due to efforts made by learned counsel, parties have seen reason and have entered into a compromise.” This Court, thus, treated such offences including one under section 307, IPC were of a personal nature and not offences against the society.

22. On the other hand, we have few judgments wherein this Court refused to quash the proceedings in FIR registered under section 307 IPC etc. on the ground that offence under section 307 was of serious nature and would fall in the category of heinous crime. In the case of Shiji vs. Radhika & Anr. (2011) 10 SCC 705 the Court quashed the proceedings relating to an offence under section 354 IPC with the following observations: “We have heard learned counsel for the parties and perused the impugned order. Section 320 of the Cr.P.C. enlists offences that are compoundable with the permission of the Court before whom the prosecution is pending and those that can be compounded even without such permission. An offence punishable under 17 Page 18 Section 354 of the IPC is in terms of Section 320(2) of the Code compoundable at the instance of the woman against whom the offence is committed. To that extent, therefore, there is no difficulty in either quashing the proceedings or compounding the offence under Section 354, of which the appellants are accused, having regard to the fact that the alleged victim of the offence has settled the matter with the alleged assailants. An offence punishable under Section 394 IPC is not, however, compoundable with or without the permission of the Court concerned. The question is whether the High Court could and ought to have exercised its power under section 482 the said provision in the light of the compromise that the parties have arrived at.” 23. In a recent judgment in the case of State of Rajasthan vs. Shambhu Kewat & Ors. 2013 (14) SCALE 235, this very Bench of the Court was faced with the situation where the High Court had accepted the settlement between the parties in an offence under Section 307 read with Section 34 IPC and set the accused at large by acquitting them. The settlement was arrived at during the pendency of appeal before the High Court against the order of conviction and sentence of the Sessions Judge holding the accused persons guilty of the offence under Section307/34 IPC. Some earlier cases of compounding of offence under Section 307 IPC were taken note of, noticing under certain circumstances, the Court had approved the compounding whereas in certain other cases such a course of action was not accepted. In that case, this Court took the view that High Court was not justified in accepting the compromise and setting aside the conviction. While doing so, following discussion ensued: 18 Page 19 “We find, in this case, such a situation does not arise. In the instant case, the incident had occurred on 30.10.2008. The trial court held that the accused persons, with common intention, went to the shop of the injured Abdul Rashid on that day armed with iron rod and a strip of iron and, in furtherance of their common intention, had caused serious injuries on the body of Abdul Rashid, of which injury number 4 was on his head, which was of a serious nature. Dr.Rakesh Sharma, PW5, had stated that out of the injuries caused to Abdul Rashid, injury No.4 was an injury on the head and that injury was “grievous and fatal for life”. PW8, Dr. Uday Bhomik, also opined that a grievous injury was caused on the head of Abdul Rashid. DR. Uday conducted the operation on injuries of Abdul Rashid as a Neuro Surgeon and fully supported the opinion expressed by PW5 Dr. Rakesh Sharma that injury No.4 was “grievous and fatal for life”. We notice that the gravity of the injuries was taken note of by the Sessions Court and it had awarded the sentence of 10 years rigorous imprisonment for the offence punishable under Section 307 IPC, but not by the High Court. The High Court has completely overlooked the various principles laid down by this Court in Gian Singh (Supra), and has committed a mistake in taking the view that, the injuries were caused on the body of Abdul Rashid in a fight occurred at the spur and the heat of the moment. It has been categorically held by this Court in Gian Singh (supra) that the Court, while exercising the power under Section 482, must have “due regard to the nature and gravity of the crime” and “the social impact”. Both these aspects were completely overlooked by the High Court. The High Court in a cursory manner, without application of mind, blindly accepted the statement of the parties that they had settled their disputes and differences and took the view that it was a crime against “an individual”, rather than against “the society at large”. We are not prepared to say that the crime alleged to have been committed by the accused 19 Page 20 persons was a crime against an individual, on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non-compoundable, because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant, just to protect the individual, but the society as a whole. High Court was not right in thinking that it was only an injury to the person and since the accused persons had received the monetary compensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is safety and protection of the people at large and it would be a lesson not only to the offender, but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society at large.”

24. Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under section 307,IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the 20 Page 21 Constitution of India. Stare Decisis is the fundamental principle of judicial decision making which requires ‘certainty’ too in law so that in a given set of facts the course of action which law shall take is discernable and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by “that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances”.

25. As there is a close relation between the equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it 21 Page 22 should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well, the matter is examined in the context of offences under Section 307 IPC. 26. The two rival parties have amicably settled the disputes between themselves and buried the hatchet. Not only this, they say that since they are neighbours, they want to live like good neighbours and that was the reason for restoring friendly ties. In such a scenario, should the court give its imprimatur to such a settlement. The answer depends on various incidental aspects which need serious discourse. The Legislators has categorically recognized that those offences which are covered by the provisions of section 320 of the Code are concededly those not only do not fall within the category of heinous crime but also which are personal between the parties. Therefore, this provision recognizes whereas there is a compromise between the parties the Court is to act at the said compromise and quash the proceedings. However, even in respect of such offences not covered within the four corners of Section 320 of the Code, High Court is given power under Section 482 of the Code to accept the compromise between the parties and quash the proceedings. The guiding factor is as to whether the ends of justice would justify such exercise of power, both the ultimate consequences may be acquittal or dismissal of indictment. This is so recognized in various judgments taken note of above. 22 Page 23

27. In the case of Dimpey Gujral (supra), observations of this Court to the effect that offences involved in that case were not offences against the society. It included charge under Section 307 IPC as well. However, apart from stating so, there is no detained discussion on this aspect. Moreover, it is the other factors which prevailed with the Court to accept the settlement and compound he offence, as noted above while discussing this case. On the other hand, in Shambhu Kewat (supra), after referring to some other earlier judgments, this Court opined that commission of offence under Section 307 IPC would be crime against the society at large, and not a crime against an individual only. We find that in most of the cases, this view is taken. Even on first principle, we find that an attempt to take the life of another person has to be treated as a heinous crime and against the society. 28. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Chargesheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, 23 Page 24 of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.

29. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173,Cr.P.C. is also placed 24 Page 25 before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case.

30. We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 IPC has been proved beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet. 25 Page 26

31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: (I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. (II)When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 26 Page 27 (III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. (IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. (V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. (VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the 27 Page 28 charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. (VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the 28 Page 29 criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime. 32. After having clarified the legal position in the manner aforesaid, we proceed to discuss the case at hand. 29 Page 30

33. In the present case, FIR No.121 dated 14.7.2010 was registered under Section 307/324/323/34 IPC. Investigation was completed, whereafter challan was presented in the court against the petitioner herein. Charges have also been framed; the case is at the stage of recording of evidence. At this juncture, parties entered into compromise on the basis of which petition under Section 482 of the Code was filed by the petitioners namely the accused persons for quashing of the criminal proceedings under the said FIR. As per the copy of the settlement which was annexed along with the petition, the compromise took place between the parties on 12.7.2013 when respectable members of the Gram Panchayat held a meeting under the Chairmanship of Sarpanch. It is stated that on the intervention of the said persons/Panchayat, both the parties were agreed for compromise and have also decided to live with peace in future with each other. It was argued that since the parties have decided to keep harmony between the parties so that in future they are able to live with peace and love and they are the residents of the same village, the High Court should have accepted the said compromise and quash the proceedings. 34. We find from the impugned order that the sole reason which weighed with the High Court in refusing to accept the settlement between the parties was the nature of injuries. If we go by that factor alone, normally we would tend to agree with the High Court’s approach. However, as pointed out hereinafter, some other attendant and 30 Page

31 inseparable circumstances also need to be kept in mind which compel us to take a different view

. 35. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors  into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with Police Station LOPOKE, District Amritsar Rural be quashed. We order accordingly.

36. Appeal is allowed. No costs. ……………………………

…J. (K.S.Radhakrishnan) ………………………………J. (A.K.Sikri) New Delhi,