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V.K.Singh

Advocate at Supreme Court of India.

www.vksnco.com

Mr. Singh is the founder member and the Managing partner of the firm, V.K.Singh & Co.. (Law Offices). He has the vide expertise over the matters related to Civil & Commercial Disputes, Family and Matrimonial Disputes, Consumer Disputes and Recovery of Debts for Banking & Financial Institutions and Alternate Dispute Resolution. He is known for his self developed and distinguished negotiation skills, extempore arguments. His experience covers a wide range of litigations, legal consultancy and arbitrations. He possesses superb drafting skill, well acclaimed consummate and effective argumentation skill and unparallel client counseling skill.

Criminal Practice Experience.

Mr.Singh has vast knowledge in Criminal Practice and advised, drafted and contested the matters of his respective clients in Bail Matters ,Dowry Cases, Narcotic Drug Cases (NDPS Cases),Criminal Trial ,Rape Cases or Sexual Harassment Cases, Fraud Cases ,Cheating Cases ,EOW Cases, Anti corruption Cases, Criminal Writ Petition, Criminal Revision ,Criminal Appeal, Criminal SLP etc. .in  Hon’ble Supreme Court of India ,High Courts and all District Courts in India.

Contact :

Mobile : 91-9811645002

Email : lawofficevksingh@gmail.com

 

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Discharge of Accused in Criminal Cases.

In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, the Supreme Court observed that it is the bounden duty of the Trial Court in Section 251 Cr.P.C. to satisfy whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him. The relevant findings of the Supreme Court are reproduced hereunder:-

“20. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.”

However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity.

In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.

Sec.248. Acquittal or conviction.

(1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions

of section 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.

(3) Where, in any case under this Chapter, a previous conviction is charged under the provisions of sub- section (7) of section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon: Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under sub- section (2).

A perusal of section 248 Cr.P.C. shows that the Magistrate may either acquit the accused but in case he finds him guilty, he may either proceed under section 325 Cr.P.C. or under section 360 Cr.P.C. and in case he does not chose either of the said two options, he shall proceed to hear the accused on quantum of sentence and impose sentence according to law. In other words, provisions under section 325 Cr.P.C. would come into play after a finding regarding guilt has been recorded. It further becomes evident that the proceedings before passing any order for resorting to 325 Cr.P.C or for releasing him on probation u/s 360 Cr.P.C. or imposing sentence upon the accused are of the same nature and kind and different kinds of proceedings are not visualised. This is what the Magistrate has done in the present case wherein while aquitting one of the accused he has recorded a finding regarding guilt of the other accused.

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  • Prachi Singh Advocate
  • Supreme Court of India

Prachi Singh Advocate B.com,LLB,MBA is practicing Lawyer/Attorney at Supreme Court of India,Delhi High Court and all Districts Courts.She is regularly drafting,Advising and contesting the matters related to Anticipatory Bail,Bail Matters,Criminal Writ Petition in High Courts,Criminal Writ Petition in Supreme Court,Criminal Appeal,Criminal Revision Petition,Quashing of Charge sheet,Quashing of FIR,Cancellation of Bail,Criminal Defence Lawyer,quashing of Proclaimed offender orders,Cases related Cyber Crimes,Cases related Cheating,Cases related Property fraud,Banking fraud cases,perjury cases,criminal defamation,Sexual Harassment Cases and all Criminal Cases..

PROFESSIONAL MEMBERSHIP WITH

-Supreme Court Bar Association
-Delhi High Court Bar Association
-Delhi Bar Association
-Indian National Bar Association
-Associate Member of American Bar Association International Section.
-Indian Council of Arbitration (ICA)
-Associate Member of The Indian Society of International Law
-INTERNATIONAL SOCIETY OF FAMILY LAW

  • Leges Juris Associates
  • Advocates & Solicitors
  • A-381,Defence Colony,New Delhi-110024,
  • Phone: +91-11-40513913,9811114265

        V.K. Singh

v.k.singh_advocate_1401182791_06

 

Advocate, Supreme Court of India

Year of Professional Experience.

More than 15 Years.

PROFESSIONAL AFFILIATIONS / MEMBERSHIPS

  • Member of New Delhi Bar Association, New Delhi.
  • .Member of Delhi Bar Association ,Tis Hazari,Delhi.
  • Member of Saket Bar Association, Saket, New Delhi.
  • Member of Delhi High Court Bar Association,[DHCBA], New Delhi.

Mr. Singh is the founder member and the Managing partner of the firm, V.K.Singh & Co.. (Law Offices). He has the vide expertise over the matters related to Civil & Commercial Disputes, Family and Matrimonial Disputes, Consumer Disputes and Recovery of Debts for Banking & Financial Institutions and Alternate Dispute Resolution. He is known for his self developed and distinguished negotiation skills, extempore arguments. His experience covers a wide range of litigations, legal consultancy and arbitrations. He possesses superb drafting skill, well acclaimed consummate and effective argumentation skill and unparallel client counseling skill.

Criminal Practice Experience.

Mr.Singh has vast knowledge in Criminal Practice and advised, drafted and contested the matters of his respective clients in Bail Matters ,Dowry Cases, Narcotic Drug Cases (NDPS Cases),Criminal Trial ,Rape Cases or Sexual Harassment Cases, Fraud Cases ,Cheating Cases,EOW Cases, Anti corruption Cases, Criminal Writ Petition, Criminal Revision ,Criminal Appeal, Criminal SLP etc. .in  Hon’ble Supreme Court of India ,High Courts and all District Courts in India.

Contact :

Mobile : 91-9811645002

Email : lawofficevksingh@gmail.com

  • Prachi Singh Advocate
  • Supreme Court of India

Prachi Singh Advocate B.com,LLB,MBA is practicing Lawyer/Attorney at Supreme Court of India,Delhi High Court and all Districts Courts.She is regularly drafting,Advising and contesting the matters related to Anticipatory Bail,Bail Matters,Criminal Writ Petition in High Courts,Criminal Writ Petition in Supreme Court,Criminal Appeal,Criminal Revision Petition,Quashing of Charge sheet,Quashing of FIR,Cancellation of Bail,Criminal Defence Lawyer,quashing of Proclaimed offender orders,Cases related Cyber Crimes,Cases related Cheating,Cases related Property fraud,Banking fraud cases,perjury cases,criminal defamation,Sexual Harassment Cases and all Criminal Cases..

PROFESSIONAL MEMBERSHIP WITH

-Supreme Court Bar Association
-Delhi High Court Bar Association
-Delhi Bar Association
-Indian National Bar Association
-Associate Member of American Bar Association International Section.
-Indian Council of Arbitration (ICA)
-Associate Member of The Indian Society of International Law
-INTERNATIONAL SOCIETY OF FAMILY LAW

  • Leges Juris Associates
  • Advocates & Solicitors
  • A-381,Defence Colony,New Delhi-110024,
  • Phone: +91-11-40513913,9811114265

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.

========================================================================

[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

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

Criminal Application No.663 of 2008

And

Criminal Writ Petition No.58 of 2008

Criminal Application No.663 of 2008

Smt. Gita w/o Chandrashekhar Pandit,

Aged about 47 years,

Occ.: Nil,

R/o Gorelal Chowk,

Tah. & District Gondia. … Applicant

Versus

Shri Chaqndrashekhar s/o Rameshwar

Pandit,

Aged about 49 years,

Occ.: Legal Practitioner,

R/o Nandurbar,

Tah. & District Nandurbar. … Non-Applicant

Shri S.V. Sirpurkar, Advocate for Applicant. Shri S.P. Bhandarkar, Advocate for Non-Applicant.

Criminal Writ Petition No.58 of 2008

Chandrashekhar s/o Rameshawar Pandit,

Aged 49 years,

Occ.: Advocate,

R/o Nandurbar,

Tahsil Nandurbar,

District Nandurbar. … Petitioner

Versus

2

Sushree Geeta d/o Ramnath Sharma,

(earlier Smt. Geeta w/o Chandrashekhar Pandit), Aged Major,

Occ.: Landlady,

R/o Bazar Chowk,

Gondia. … Respondent

Shri S.P. Bhandarkar, Advocate for Petitioner. Shri S.V. Sirpurkar, Advocate for Respondent.

CORAM : R.C. Chavan, J.

Date of Reserving the Judgment : 13-1-2009.

Date of Pronouncing the judgment : 20-1-2009

Judgment :

1. These proceedings by wife and husband respectively

against each other raise a short legal point.

2. It is not in dispute that Gita was married to

Chandrashekhar, an Advocate on 8-12-1985. Marital discord led

Gita to seek maintenance under Section 125 of the Code of

Criminal Procedure by an application made in the year 1987. By

an order dated 19-11-1992, Gita was granted maintenance at the

rate of Rs.500/- per month. In 1990, Chandrashekhar filed a 3

petition for decree of divorce from Gita on the ground of cruelty.

Decree of divorce was granted finality by judgment

dated 1-3-2001 in Second Appeal No.129 of 1999 decided by

Aurangabad Bench of this Court.

3. It may be useful to recount how this litigation

proceeded. Petition for divorce by husband on the ground of

cruelty was contested by wife, who also filed a counter-claim for

restitution of conjugal rights. The Trial Court as well as the First

Appellate Court rejected husband’s claim for divorce and decreed

wife’s claim for restitution of conjugal rights, as may be seen from

copy of decree in Hindu Marriage Petition No.76 of 1987 of Court

of Civil Judge, Senior Division, Dhule, re-numbered as Hindu

Marriage Petition No.2 of 1990 in the Court of Civil Judge, Senior

Division, Nandurbar, which was included in the compilation filed

by husband. In spite of the fact that the decree specifically

recounts that wife had made a counter-claim for restitution of

conjugal rights and had paid court fee of Rs.37.50 (37.50 ?) on

the said counter-claim, which is also duly included in the bill of 4

costs, a substantial question of law seems to have been raised in

the following words as can be seen from para 6 of the judgment in

Second Appeal :-

“(ii) Whether in the absence of any prayer for restitution of conjugal rights, it was open for the courts below to pass a decree for restitution of conjugal rights against the appellant ?”

4. The learned counsel for husband, arguing the Second

Appeal, reiterated this, as may be seen from para 13 of the

judgment. Up to para 31, the judgment recounts arguments

advanced. In paras 32 to 35, there is discussion about

disobedience to decree for restitution of conjugal rights operating

as a bar for husband’s getting decree of divorce. In para 36, the

judgment considers ground of cruelty on account of false

complaints. The Court observed that in Second Appeal, the Court

would not re-appreciate evidence. The Court then proceeded to

hold that both the Courts below had perversely held that cruelty 5

was not proved, in the following words in para 37 :

“37. Another aspect of “mental cruelty” is with regard to the false allegation regarding impotency of appellant husband and making this allegation in public is also a serious act of “cruelty”. Therefore, I am of the clear view that both the lower appellate Courts have acted perversely in arriving at a finding that husband had failed to establish “cruelty” entitling him to a decree of dissolution of marriage, especially when the same is coupled with the factor of irretrievable breakdown of marriage over a long period.”

5. In para 39, about absence of prayer for restitution of

conjugal rights, the Court observes as under :

“39. In this context, it will also be noted that both the Courts below had admittedly granted a decree for restitution of conjugal rights, without there being any prayer made in that behalf by respondent-wife, which substantial question of law also, I answer in favour of the Appellant.”

6

Ultimately, the Court granted decree of divorce on the ground of

cruelty “coupled with the factor of irretrievable breakdown of

marriage”.

6. This account of the litigation speaks volumes about the

manner in which matters are conducted in this Court. Either

there was really no counter-claim for restitution of conjugal rights

by the wife, and in that case, the learned counsel for husband,

who has placed copy of decree of Civil Court for my perusal,

would have to ask himself if a wrong copy was placed before this

Court and why. If the copy is indeed the correct copy, it would be

a sad comment on the assistance of officers of the Court to Judges.

In that case, the husband’s counsel would not only have raised a

false ground in the Second Appeal that there was no claim for

restitution of conjugal rights, but would have falsely reiterated the

same, leading the Court to accept it – a case of suppresio veri as

well as suggestio falsi. If there was claim for restitution of

conjugal rights by the wife, and decree for the same was reversed 7

in Second Appeal erroneously holding that there was no such

claim, the plight of wife could well be imagined.

7. Reverting to the facts which led the parties to this Court

in the present proceeding, Gita filed an application bearing

No.113 of 2000 for enhancement of maintenance from Rs.500/- to

Rs.1,500/- per month before the learned Judicial Magistrate First

Class, Gondia. Chandrashekhar too filed Application No.82 of

2001 for cancellation of order of maintenance in view of the fact

that decree of divorce was passed on his petition. By common

judgment dated 19-7-2007, the learned Judicial Magistrate First

Class rejected husband’s application and allowed wife’s application

partly, increasing maintenance allowance to Rs.1,250/- per month

by common judgment dated 19-7-2007. Revision applications by

both the parties were dismissed by common judgment dated 20-

11-2007 by the learned Additional Sessions Judge, Gondia.

8. Aggrieved thereby, the husband has filed Criminal Writ

Petition No.58 of 2008 seeking quashing of order directing him to

pay maintenance, and the wife has filed Criminal Application 8

No.663 of 2008 for enhancement of maintenance allowance to

Rs.5,000/- per month.

9. I have heard the learned counsel for both the husband

and wife.

10. The learned counsel for husband relied on a judgment

of Division Bench of this Court in Bhagwan Raoji Dale v. Sushma

alias Nanda Bhagwan Dale and another, reported at 1998(2)

Mh.L.J. 819, upon a reference by a learned Single Judge where

the Bench held that when the husband had obtained a decree for

restitution of conjugal rights, which the wife failed to comply

leading to a decree of divorce, such wife would not be entitled to

maintenance as she would not fall under any of the two categories

in Explanation (b) to Section 125(1) of the Code of Criminal

Procedure. Explanation (b) to Section 125(1) of the Code of

Criminal Procedure reads as under :-

“(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband 9

and has not remarried.”

In Sharadchandra Satbhai v. Indubai Satbhai, reported at 1978

Mh.L.J. 123 (with which the learned Single Judge disagreed), the

Court held that even a divorced wife was entitled to maintenance,

but this right was subject to sub-section (4) of Section 125, which

inter alia disentitles a wife, who, without sufficient reason,

refused to live with her husband. In that case, wife was held to

have deserted her husband without reasonable cause and his

petition for judicial separation on this ground had been decreed.

The learned Single Judge felt that this was in conflict with

pronouncement of the Supreme Court in Bai Tahira v. Ali Hussain

Fissalli Chothia, reported at 1979 Mh.L.J. 95. Bai Tahira had been

divorced by her husband in July 1962. The Apex Court held that

she was entitled to maintenance.

11. The Division Bench in Bhagwan Raoji considered both

these judgments, as also the significance of the expression in

Explanation (b) to Section 125(1) of the Code of Criminal 10

Procedure, viz. “who has been divorced by” or “has obtained

divorce from”, which has been again used in clauses (c) and (d) of

Section 127(3) of the Code of Criminal Procedure. The Division

Bench then considered whether the respondent before them could

claim benefit of extended definition of ‘wife’ in Explanation (b) to

Section 125(1), since she had suffered an ex parte decree of

restitution of conjugal rights on 31-7-1979, followed by ex parte

decree of divorce on 3-12-1980 for failure to comply with decree

for restitution of conjugal rights in spite of husband’s filing an

execution proceeding. The Division Bench then held as under in

paras 16 and 17 of the judgment :

“16. A close scrutiny of the phraseology used in clause (b) of the Explanation to section 125(1) shows that it is in two parts. The first part deals with a wife who has been divorced by her husband which, in our view would, normally, apply to parties professing the Muslim religion or whereunder a customary law applicable to some Hindus, the husband is entitled to unilaterally divorce the wife. This is because the words used are that the “woman 11

has been divorced by the husband”. The second part deals with the case whether the wife has obtained a divorce from her husband. This contemplates the wife moving the court for a decree for divorce and the wife obtaining a decree for divorce from her husband. Undoubtedly, in either of the two situations falling is clause (b), the wife has not remarried. If this is the true interpretation of clause (b) of the Explanation, then in our view, the respondents’s case cannot fall under the said clause (b). On the date when the Magistrate passed the order in the application under section 125 viz. on 3rd May, 1993, the respondent was a divorcee. But she was not falling in any of the two categories contemplated by Explanation (b) of section 125(1). In our view, therefore, the respondent cannot draw any support from the ratio of the decision of the Apex Court in Bai Tahira’s case.”

“17. In the light of what we have stated above, we do not think that the view taken by the Division Bench of this Court in Sharadchandra Satbhai’s case requires reconsideration. As stated earlier, in Sharadchandra Satbhai’s case also, as in the present case, the wife left the matrimonial home. The husband filed a suit for judicial 12

separation and obtained a decree on the ground that the wife had deserted. Relying upon this fact, the learned Magistrate had dismissed the application under section 125 for maintenance. The Revisional Court had allowed the wife’s application against which the husband had approached this court. This court allowed the husband’s application and, in the result, dismissed the wife’s application for maintenance. While arriving at its conclusion, the Division Bench in Sharadchandra Satbhai’s case considered the effect Explanation (b) to section 125(1) as also sub-section (4) of section 125. Para 8 of the judgment at page 126 may usefully be reproduced :

“8. It is, however, open to a wife who is unable to maintain herself and her husband has sufficient means to maintain her but nevertheless neglects or refuses to do so, to make an application under section 125, Criminal Procedure Code, 1973, and seek an order for maintenance, subject to the conditions and limitations of that section. Explanation (b) of section 125(1) clarifies that even if she is a divorcee, she can claim maintenance provided she is not remarried. Sub-section (4) disentitles a wife to receive allowance 13

in certain cases, one of them being “if, without any sufficient reason, she refused to live with her husband”. This sub-section governs the whole of section 125. Now, in a case like the present one, when the Civil Court has determined the issue of desertion and held that the wife has left her husband without reasonable cause and against his wish and without his consent can it be said that she is still entitled to maintenance under section 125 and not hit by sub-section (4)? It is plain and simple that she has refused to live with her husband without any sufficient reason and, therefore, disentitled herself to receive maintenance under section 125. The effect of the decree for judicial separation on this particular ground of desertion cannot be overlooked by the Magistrate dealing with an application under section 125 because he has to bear in mind the disability created by sub-section (4) of that section. The fact that a decree for judicial separation has been passed in favour of the husband on the ground of desertion means that the wife is guilty of refusing to live with her husband. In our judgment, Indubai is not entitled to maintenance under section 125, Criminal 14

Procedure Code, 1973, as she had no reasonable ground not to live with her husband. The approach of the learned Additional Sessions Judge overlooks the object and purpose of sub-section (1) of section 125. It is true that a divorcee is entitled to approach the Magistrate under section 125 for speedy remedy. So could a wife against whom a decree for judicial separation is passed, but a wife who has deserted her husband within the meaning of the Explanation to section 10(1) of the Hindu Marriage Act, 1955, as discussed above, is not entitled to apply under section 125 of Criminal Procedure Code, 1973″.

We are in respectful agreement with the view expressed by the Division Bench in Sharadchandra Satbhai’s case.”

12. The Division Bench then took a review of several

judgments on the subject. In paras 27, 31 and 32, the Court then

concluded as under :

“27. It appears to us further that if the wife is at fault and if the husband succeeds in obtaining a decree for 15

restitution of conjugal rights, as long as the marriage subsists, the wife would not be entitled to claim maintenance in view of sub-section (4) of section 125. Would it, then be permissible to saddle the husband with maintenance if such a wife has been divorced pursuant to a decree passed by a competent court as a result of the failure on the part of the wife to obey the decree for restitution of conjugal rights. In our view the answer must be in the negative. Granting maintenance to such a wife would be tantamount to permiitting a person to take advantages of one’s own wrong. Finding of the Civil Courts in the two matrimonial petitions, one for restitution of conjugal rights and other for divorce is that the wife was in the wrong. That finding has not been challenged in a superior court. The two decrees are final. We must, therefore, proceed on the footing that the wife was in the wrong. In our view, therefore, she is not entitled to maintain an application by taking advantages of the extended meaning in Explanation (b) to section 125(1) of the Code.”

“31. In the light of the above discussion, we may sum up our conclusion as under. It is not every divorced wife 16

who can claim maintenance under section 125(1) of the Code. A woman who has been divorced by her husband is included in the first part of Explanation (b) to section 125(1). She can claim maintenance under section 125(1). In this category would normally, fall the case of a Muslim woman who has been unilaterally divorced by her husband in accordance with Muslim Personal law. This category may also include a woman who, under the customary law applicable to some Hindus, has been unilaterally divorced by her husband. The second category falling under Explanation (b) to section 125(1), who can claim maintenance under the said section, consists of a woman who has obtained divorce from her husband, meaning thereby that the wife has initiated proceedings for obtaining divorce from the husband, as indicated in para 24 above. In this view of the matter, we are of the opinion that the Division Bench decision of this court in Sharadchandra Satbhai vs. Indubai Satbhai, 1978 Mh.L.J. 123, does not require reconsideration and we are in agreement with the ratio of the said decision. We also approve of the decision rendered by three learned Single Judges of this Court in the three cases discussed above (i) Baburao Kalaskar’s case, decided by Puranik, J. 17

(para 18 above), (ii) Smt. Shantabai Saitwal’s case, decided by Mehta, J. (para 19 above) and (iii) Kalidas Shinde’s case, decided by Deshpande, J. (para 20 above). We are unable to persuade ourselves to agree with the view expressed by Vaidya, J. in Smt. Sugandhabai vs. Vasant Deobhat, 1992 Cri.L.J. 1838. For the reason discussed above, we are not in agreement with the view expressed by Vaidya, J. in the said case.”

“32. In the view that we have taken, the question referred for our decision must be answered against the respondent-wife. In our view, in the facts and circumstances of the case, where the husband had obtained a decree for restitution of conjugal rights and the wife had failed to comply with the said decree resulting in the husband obtaining a decree for divorce, the respondent-wife does not fall in any of the two categories contemplated by Explanation (b) to section 125(1) of the Code. In the circumstances, the application for maintenance made by the wife was liable to be rejected as not maintainable. Since we have come to the conclusion that the application of the respondent-wife was not maintainable in law, it is not necessary for us to refer 18

the case back to a learned Single Judge since nothing remains to be decided on merits of the matter.”

In separate but concurring judgment in para 38, an Hon’ble Judge,

who was a member of the Bench, observed as under :-

“38. The next thing which we have to consider is whether the case of such a wife or woman can fall in the first limb of explanation (b). Here also the answer should be in the negative for the simple reason that the wording used by the legislature is not a woman against whom a decree of divorce was obtained by her husband but the woman who has been divorced by her husband. If the legislature had wanted to include a woman against whom a decree of divorce is obtained by her husband, the legislature would have used the appropriate phraseology to cover such woman as done in the second limb of the explanation to cover the case of a woman who herself obtains divorce from her husband. The fact that different phraseology has been used for the first limb of explanation (b) would mean that the legislature never intended to include woman against whom decree of 19

divorce was obtained by her husband from a Court of law by proving some fault on the part of the wife. The words used by the legislature in the said explanation would not justify different interpretation. On the contrary, the words are very clear which do not include a woman whose marriage has been dissolved by decree of divorce at the instance of her husband. If the interpretation which was placed by some of the Courts is accepted so as to include woman against whom divorce was obtained by her husband from a Court of law, it would certainly lead to a very anomalous situation. If such a woman against whom decree of divorce was obtained by the husband is included in the extended definition of wife under section 125(1) of the Code of Criminal Procedure it would mean that the woman who was wrong doer or was guilty of desertion or cruelty against her husband would be entitled to claim maintenance after a decree of divorce is passed against her, though undisputedly, she would not be entitled for maintenance before such divorce was granted by virtue of sub-section (4) of section 125 of the Code of Criminal Procedure. To hold that a woman against whom a decree of divorce was obtained by the husband is entitled for maintenance, would go not only 20

against the express words of explanation (b) to section 125(1) of the Code of Criminal Procedure but also would create an anomalous situation as pointed out above. Happily the legislature itself has taken care to see that such incongruous position does not arise by using appropriate phraseology.”

13.. The learned counsel for husband also relied on a

judgment of the same Hon’ble Single Judge in Satyawan Laxman

Jagtap v. Vimal Satyawan Jagtap and others, reported at 2000(1)

Mh.L.J. 419, where similar view was taken.

14. The learned counsel for wife submitted that this view

may no longer be regarded as good law in view of categorical

pronouncement of the Apex Court in Rohtash Singh v. Ramendri

(Smt) and others, reported at (2000) 3 SCC 180. Parties were

married on 10-5-1980. In 1991, wife left husband’s house and

refused to return. Husband filed a petition for dissolution of

marriage on the ground of desertion. On 15-7-1995, the Family

Court granted a decree of divorce on the ground of desertion. 21

Wife had claimed maintenance under Section 125 of the Code of

Criminal Procedure. Family Court granted maintenance in spite of

decree of divorce on the ground of desertion. High Court

dismissed husband’s revision leading to his filing Special Leave

Petition before the Hon’ble Supreme Court. It was specifically

argued that in the face of decree of divorce on the ground of

desertion, in view of provisions of Section 125(4) of the Code of

Criminal Procedure, maintenance could not be granted. It may be

useful to quote the observations of the Apex Court in paras 6 to 12

of the judgment which squarely deal with the questions raised in

the present case :-

“6. Under this provision, a wife is not entitled to any maintenance allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of Section 125 Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to 22

an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim maintenance allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim maintenance allowance under Section 125 of the Code of Criminal Procedure.”

“7. The second ground on which she would not be entitled to maintenance allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. “Sufficient reasons” have been interpreted differently by the High Courts having regard to the facts of individual cases. We are not required to go into that 23

question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim maintenance alloowance under Section 125 CrPC and how far can the plea of desertion be treated to be an effective plea in support of the husband’s refusal to pay her the maintenance allowance.”

“8. Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15-7- 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be a “wife” within the meaning of Section 125 CrPC on accodunt of Explanation (b) to sub- 24

section (1) which provides as under :

“Explanation.–For the purposes of this chapter– (a) * * *

(b) ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

“9. On account of the explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband. This Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal observed as under : (SCC p. 74, para 9)

“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like 25

women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause – the cause of the derelicts.”

“10 Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub- section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi). The Allahabad High Court also, in the instant case, has taken a similar view. 26

We approve these decisions as they represent the correct legal position.”

“11. Learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her.”

27

“12. Learned counsel for the petitioner then contended that the maintenance has been allowed to the respondent from the date of the application. The application under Section 125 CrPC was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by the respondent, she would not be entitled to maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, the learned counsel appears to be correct. But for that short period, we would not be inclined to interfere.”

In view of this pronouncement of the Supreme Court, it is not

necessary to refer to the judgments of Kerala, Himachal Pradesh,

Delhi and Orissa High Courts, which were cited by the learned

counsel for the wife.

15. It may be seen that the Apex Court has held that even a

wife, who is divorced on the ground of desertion, is entitled to

maintenance and she does not get disentitled under sub-section 28

(4) of Section 125 of the Code of Criminal Procedure Code. Thus

the very basis of the judgment of the Division Bench in

Sharadchandra Satbhai v. Indubai Satbhai, reported at 1978

Mh.L.J. 123, which was approved by the Division in Bhagwan

Raoji Dale v. Sushma alias Nanda Bhagwan Dale and another,

reported in 1998(2) Mh.L.J. 819, goes away. In Sharadchandra,

the wife was held disentitled to maintenance specifically on

account of the provisions of Section 125(4) of the Code. In fact

Sharadchandra is not an authority for the interpretation sought to

be put on expression used in Explanation (b) to Section 125(1) of

the Code. There is absolutely no warrant for concluding that a

woman “who has been divorced” refers to only women who have

been divorced under the Mulsim Law or customary law, or that

woman “who has obtained a divorce from her husband” refers to

only those wives who have obtained a decree of divorce. since the

Explanation (b) was intended to include divorced wives and since

apart from judicial proceedings, divorce is also possible according

to personal or customary law applicable to parties. A woman 29

“who has been divorced” would include any woman who has been

divorced not only according to personal or customary law, but one

who has been divorced on a decree in proceeding initiated by her

husband. And, the expression “a woman who has obtained

divorce” would not be restricted to only those wives who apply for

a decree of divorce (as has been observed in para 16 of the

judgment in Bhagwan Raoji – 1998(2) Mh.L.J. 819) but may also

include those who can and do obtain divorce under customary or

personal law. It may be recalled that even under Mohamadan

Law, “Khula” is a form of divorce granted at the instance of a

Mulsim wife. The distinction sought to be made in paras 16 and

38 of the judgment in Bhagwan Raoji can no longer be held as

good law since it cannot stand with the conclusion drawn by the

Supreme Court in Rohtash Singh v. Ramendri (Smt) and others,

reported at (2000) 3 SCC 180.

16. The learned counsel for husband submitted even if a

wife, who is divorced on the ground of desertion, is held entitled

to maintenance, the same may not hold good in respect of a wife 30

divorced on the ground of her cruelty (Cruelty in the present case

is her allegation that husband is impotent). First, the phraseology

used in Explanation (b) to Section 125(1) of the Code would not

admit of creating classes of divorced wives. A divorced wife is a

divorced wife, whatever may be the reasons for divorce and

whatever may be the procedure adopted or forum chosen. If wife

divorced on the ground of desertion, who has a better reason to be

disentitled, because a husband cannot be said to have refused or

neglected to maintain her, is held entitled to maintenance as

divorced wife, since she herself deprived husband of the chance to

maintain her, wives divorced for other reasons would certainly be

entitled to be maintained, since as held by the Supreme Court in

Rohtash Singh, (i) such woman, being a divorced wife in terms of

Explanation (b) to Section 125(1) of the Code would be deemed

to be ‘wife’; (ii) such a woman would be under no obligation to

reside with the husband, having been divorced; and (iii) would

therefore be entitled to separate maintenance. In view of this,

husband’s petition challenging grant of maintenance to his wife on 31

the ground that having been divorced on account of cruelty, she is

not entitled to maintenance, would have to be dismissed. It may

be useful to recall that in the Second Appeal, this Court had found

it necessary to take the support of irretrievable breakdown of

marriage also to prop up the case of cruelty for granting divorce.

17. As for wife’s application for enhancing maintenance

allowance to Rs.5,000/- per month, both the Courts below, upon

consideration of evidence tendered, have held her entitled to

Rs.1,250/- per month. The findings are in tune with the facts

proved and do not call for any interference in exercise of inherent

powers under Section 482 of the Code. She could always apply

for increase of maintenance allowance by making out a case for

such increase in the Trial Court. Hence, even this application has

to be rejected.

18. Both Criminal Application No.663 of 2008 and Criminal

Writ Petition No.58 of 2008 are dismissed.

 

The bench of Justices Dipak Misra and P C Pant said the CD qualified to be treated as a document under the Evidence Act. “On a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution,”
The SC held that the accused, Shamsher Singh Verma, had claimed during his examination that he had been implicated in the case due to a property dispute.
Though the SC refused to delve into the authenticity of the conversations,
“We are of the view that the courts below have erred in law in not allowing the application of the defence to play the compact disc relating to conversation between father of the victim and son and wife of the appellant (accused) regarding alleged property dispute.

————————————————————-

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1525 OF 2015
(Arising out of S.L.P. (Crl.) No. 9151 of 2015)

Shamsher Singh Verma                         … Appellant

Versus

State of Haryana                             …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against order dated 25.8.2015, passed  by  the
High Court of Punjab and Haryana  at  Chandigarh,  whereby  said  Court  has
affirmed the order dated 21.2.2015, passed by the  Special  Judge,  Kaithal,
in Sessions Case No. 33  of  2014,  and  rejected  the  application  of  the
accused for getting exhibited the compact disc, filed in defence and to  get
the same proved from Forensic Science Laboratory.

We have heard learned counsel for the parties  and  perused  the  papers  on
record.

Briefly stated, a report was  lodged  against  the  appellant  (accused)  on
25.10.2013 at Police Station, Civil Lines, Kaithal, registered  as  FIR  No.
232 in respect of offence punishable under Section 354 of the  Indian  Penal
Code (IPC) and one relating to Protection of Children from  Sexual  Offences
Act, 2015 (POCSO) in which complainant Munish Verma alleged that  his  minor
niece was molested by the appellant.  It appears that  after  investigation,
a charge sheet is filed  against  the  appellant,  on  the  basis  of  which
Sessions Case No. 33 of 2014 was registered.  Special Judge, Kaithal,  after
hearing the parties, on 28.3.2014  framed  charge  in  respect  of  offences
punishable under Sections 354A and 376 IPC and also in  respect  of  offence
punishable under Sections 4/12 of POCSO.  Admittedly  prosecution  witnesses
have been examined in said case, whereafter statement  of  the  accused  was
recorded under Section 313 of the Code  of  Criminal  Procedure,  1973  (for
short “CrPC”).  In defence the accused has examined four witnesses,  and  an
application purported to have  been  moved  under  Section  294  CrPC  filed
before the trial court with following prayer: –

“In view of the submissions made above it is therefore prayed that the  said
gadgets may be got operated initially in the court for preserving a copy  of
the  text  contained  therein  for  further  communication  to  F.S.L.   for
establishing their authenticity.  It is further prayed  that  the  voice  of
Sandeep Verma may kindly be ordered to be taken by the experts at FSL to  be
further got matched with the recorded voice above mentioned.”

In said application dated 19.2.2015, it is alleged that there  is  recording
of conversation between Sandeep Verma (father of  the  victim)  and  Saurabh
(son  of  the  accused)  and  Meena  Kumari  (wife  of  the  accused).   The
application appears to have been opposed by the prosecution.   Consequently,
the trial court rejected the same vide order dated 21.2.2015  and  the  same
was affirmed, vide impugned order passed by the High Court.
Learned counsel for the appellant argued before us that the  accused  has  a
right to adduce the evidence in defence and the courts below have  erred  in
law in denying the right of defence.

On the other hand, learned counsel for the complainant and  learned  counsel
for the State contended that it is a case of sexual abuse of a female  child
aged nine years by his uncle, and the accused/appellant is trying to  linger
the trial.

In reply to this, learned counsel for the appellant pointed out  that  since
the accused/appellant is in jail, as such, there is no question on his  part
to protract the trial.  It is further submitted on behalf of  the  appellant
that the appellant was initially detained on  24.10.2013  illegally  by  the
police at the instance of the complainant, to settle  the  property  dispute
with the complainant and his brother.  On this Writ Petition (Criminal)  No.
1888 of 2013 was filed before the High Court for issuance of writ of  habeas
corpus.  It is further pointed out that  the  High  Court,  vide  its  order
dated 25.10.2013, appointed Warrant Officer, and the appellant was  released
on 25.10.2013 at  10.25  p.m.  Immediately  thereafter  FIR  No.  232  dated
25.10.2013 was registered at 10.35 p.m.  regarding  alleged  molestation  on
the basis of which Sessions Case is proceeding.  On behalf of the  appellant
it is also submitted that appellant’s wife Meena is sister of  Munish  Verma
(complainant) and Sandeep  Verma  (father  of  the  victim),  and  there  is
property dispute between the parties due to which  the  appellant  has  been
falsely implicated.

Mrs.  Mahalakshmi  Pawani,  learned  senior  counsel  for  the   complainant
vehemently argued that the alleged conversation  among  the  father  of  the
victim and son and wife of the appellant is subsequent to  the  incident  of
molestation and rape with a nine year old child, as  such  the  trial  court
has rightly rejected the application dated 19.2.2015.

However, at this stage we are not inclined to express any opinion as to  the
merits of the prosecution case  or  defence  version.   The  only  point  of
relevance at present is  whether  the  accused  has  been  denied  right  of
defence or not.

Section 294 CrPC reads as under: –

“294. No formal proof of certain documents. –  (1)  Where  any  document  is
filed before any Court by the prosecution or the  accused,  the  particulars
of every such document shall be included in a list and  the  prosecution  or
the accused, as the case may be, or the pleader for the prosecution  or  the
accused, if any, shall be called upon to admit or deny  the  genuineness  of
each such document.

(2) The list of documents shall be in such form as may  be  prescribed
by the State Government.

(3) Where the genuineness  of  any  document  is  not  disputed,  such
document may be read in evidence in any inquiry, trial or  other  proceeding
under this Code without proof of the signature of  the  person  to  whom  it
purports to be signed:

Provided  that  the  Court  may,  in  its  discretion,  require  such
signature to be proved.”

The object of Section 294 CrPC is to accelerate pace of  trial  by  avoiding
the time being wasted by the parties in recording the unnecessary  evidence.
Where genuineness of any document is  admitted,  or  its  formal  proof  is
dispensed with, the same may  be  read  in  evidence.   Word  “document”  is
defined in Section 3 of the Indian Evidence Act, 1872, as under: –
“ ‘Document’ means any matter expressed or described upon any  substance  by
means of letters, figures or marks, or by more  than  one  of  those  means,
intended to be used, or which may be used,  for  the  purpose  of  recording
that matter.

Illustration

A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.”

In R.M. Malkani vs. State of Maharashtra[1], this Court  has  observed  that
tape recorded conversation is admissible provided first the conversation  is
relevant to the matters in issue; secondly, there is identification  of  the
voice; and, thirdly, the accuracy  of  the  tape  recorded  conversation  is
proved by eliminating the possibility of erasing the tape record.

In Ziyauddin Barhanuddin Bukhari vs. Brijmohan Ramdass Mehra and  others[2],
it was held by this Court that tape-records of  speeches  were  “documents”,
as defined by Section 3 of the Evidence Act, which  stood  on  no  different
footing than photographs, and that  they  were  admissible  in  evidence  on
satisfying the following conditions:
“(a)  The  voice  of  the  person  alleged  to  be  speaking  must  be  duly
identified by the maker of the record or by others who know it.

(b)   Accuracy of what was actually recorded had to be proved by  the  maker
of the record and satisfactory evidence, direct or  circumstantial,  had  to
be there so as to rule out possibilities of tampering with the record.

(c)   The subject-matter recorded had to be shown to be  relevant  according
to rules of relevancy found in the Evidence Act.”

In view of the definition of ‘document’ in Evidence Act, and  the  law  laid
down by this Court, as discussed above, we hold that  the  compact  disc  is
also a document.  It is not necessary for the court to obtain  admission  or
denial on a document under sub-section (1) to Section  294  CrPC  personally
from the  accused  or  complainant  or  the  witness.   The  endorsement  of
admission or denial made by the counsel for defence, on the  document  filed
by the prosecution or on the application/report with which  same  is  filed,
is sufficient compliance of Section  294  CrPC.   Similarly  on  a  document
filed by the defence, endorsement of  admission  or  denial  by  the  public
prosecutor is sufficient and defence will have to prove the document if  not
admitted by the prosecution.  In  case  it  is  admitted,  it  need  not  be
formally proved, and can be read in evidence. In a complaint  case  such  an
endorsement can be made by the counsel for the  complainant  in  respect  of
document filed by the defence.

On going through the order dated 21.2.2015, passed by the  trial  court,  we
find that all the prosecution witnesses, including  the  child  victim,  her
mother Harjinder Kaur, maternal grandmother Parajit Kaur  and  Munish  Verma
have been examined.  Sandeep Verma (father of the victim)  appears  to  have
been discharged by the prosecution, and the evidence was closed.   From  the
copy of the  statement  of  accused  Shamsher  Singh  Verma  recorded  under
Section 313 CrPC (annexed as Annexure P-11 to the petition), it  is  evident
that in reply to second last question, the accused has alleged that  he  has
been implicated due to property  dispute.   It  is  also  stated  that  some
conversation is in possession of his son.  From the record it also  reflects
that Dhir Singh, Registration Clerk, Vipin Taneja, Document Writer,  Praveen
Kumar, Clerk-cum-Cashier, State Bank of Patiala, and Saurabh Verma,  son  of
the appellant have been  examined  as  defence  witnesses  and  evidence  in
defence is in progress.

We are not inclined to go into the truthfulness of the  conversation  sought
to be proved by the defence but, in  the  facts  and  circumstances  of  the
case, as discussed above, we are of the view  that  the  courts  below  have
erred in law in not allowing the application of the defence  to  get  played
the compact disc relating to conversation between father of the  victim  and
son and wife of the appellant regarding alleged property  dispute.   In  our
opinion, the courts below have erred in law in rejecting the application  to
play the compact disc in question to enable the public prosecutor  to  admit
or deny, and to get it sent to  the  Forensic  Science  Laboratory,  by  the
defence.  The appellant is in jail and there appears to be no  intention  on
his  part  to  unnecessarily  linger  the  trial,  particularly   when   the
prosecution witnesses have been examined.

Therefore, without expressing any opinion as to  the  final  merits  of  the
case, this appeal is allowed, and the orders passed by the courts below  are
set aside.  The application dated 19.2.2015 shall stand  allowed.   However,
in the facts and  circumstances  of  the  case,  it  is  observed  that  the
accused/appellant shall not be entitled to seek bail on the ground of  delay
of trial.

……………………..…………J.
[Dipak Misra]

.………………….……………J.
[Prafulla C. Pant]
New Delhi;
November 24, 2015.

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[1]    (1973) 1 SCC 471 : 1973 (2) SCR 417
[2]    (1976) 2 SCC 17 : 1975 (Supp) SCR 281