S. Joshi & Ors. v. State of Haryana 2003

Judgment

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1.1 The ultimate exercise of discretion under Section 482 Cr.P.C. or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained in B. S. Joshi's c case that the said power is in no way limited by the provi- sions of Section 320 CrPC. This Court is unable to dis- agree with such statement of law. (Para - 6) [547-A & B]

#8. S. Joshi and others vs. State of Haryana 2003(4) SCC 675 JT 2003(3) SC 277 =AIR 2003 SC 1386 - relied on. D E

1.2 In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropri- ate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same. The High Court's refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings can- not be supported. The First Information Report, which had been lodged by the complainant indicates a dispute be- tween the complainant and the accused is of a private F nature. It is no doubt true that the First Information Re- port was the basis of the investigation by the Police au- thorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. The matter could have been considered by the High Court with greater pragmatism in the facts of the case. (Paras -- 7 & 8) [547- C-G] G

#1. In the facts of this case, continuing with the criminal H proceedings would be an exercise in futility. Hence, the or- )------- I - .J.- - r J ' 7 ),.- ~ ' ... I. + ~ ' MANOJ SHARMA v. STATE & ORS. 541 --) der of the High Court is set aside and the criminal proceed- A ings pending before the Additional Chief Metropolitan Mag- istrate is quashed. (Paras - 9 & ·10) [547-G-H; 548-A] Per Markandey Katju, J. (Concurring):

1.1 A perusal o.f Section 320 Cr.P.C. shows that of- B fences under Section 46.8, 471, 34 and 120-B IPC, as men- ~ tioned in the FIR in question, cannot even be com- pounded with the permission of the Court. In fact, Sec- tion 320(9) Cr.P.C. expressly states that no offence shall be compounded except as provided by this Section. The c offences mentioned in the FIR were not compoundable except in relation to the allegations about Section 420 IPC. There are other provisions in the IPC which apparently cannot be compounded even with the permission ot the Court in view of Section 320 (9) Cr.P.C. However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B. S. Joshi and Others vs. State of Haryana. (Paras -10, 11 & 12) [550-F,G,H; 551-A&B] )' D B. S. Joshi and others vs. State of Haryana 2003(4) SCC 675 JT 2003(3) SC 277 =AIR 2003 SC 1386 - referred to. E

1.2. This Court relying on its own decision in the case of State of Karanataka vs. L. Muniswamy 1977 (2) SCC 699 observed that the High Court under Section 482 Cr.P;C. can quash the criminal proceedings if it comes to the con- F } .. -!< clusion that the ends of justice so requires e.g. where there would almost be no chance of conviction. (Para -- 13) [551-D&E] 4 B. S. Joshi and others vs. State of Haryana 2003 (4) SCC 675 = JT 2003(3) SC 277 = AIR 2003 SC 1386; State of G Karanataka vs. L. Muniswamy 1977 (2) SCC 699; Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre 1988 1 SCC 692; G V. Rao vs. L.H. V Prasad (2000) 3 SCC 693 and Nikhil Merchant vs. Central Bureau of Investigation &Anr. JT 2008 (9) SC 192 - relied on. H 542 SUPREME COURT REPORTS [2008] 14 S.C.R. A

1.3 Since Section 320 Cr.P.C. has clearly stated which )-- . ' offences are compoundable and which are not, the High Court or even this Court would not ordinarily be justified in doing something indirectly which could not be done directly. Even otherwise, it ordinarily would not be a le- B gitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 Cr.P.C. to direct doing something which the Cr.P.C. has expressly prohibited. ~ (Para - 17) [552-E & F]

1.4 Section 320 Cr.P.C. cannot be read in isolation. It c has to be read along with the other provisions in the Cr.P.C. including Section 482 Cr.P.C. The words "Nothing in this Code" used in Section 482 is a non obstante clause, and gives it overriding effect over other provisions in the Cr.P.C. The words "or otherwise to secure the ends of jus- D tice" in Section 482 implies that to secure the interest of justice sometimes (though only in very rare cases) the High Court can pass an order in violation of a provision in the Cr.P.C. (Paras - 18 & 19) [552-G; 553-B&C] I i"- 1" f t- y E F G

1.5 It is well settled that judgments of a Court cannot be read mechanically and like a Euclid's theorem. In rare and exceptional cases a departure can be made from the principle so laid down by the Court in various decisions regarding exercise of power under s.482 Cr.P.C. (Para - 21) [553-E&F] Mosst. Simrikhia vs. Dolley Mukherjee AIR 1990 SC ~ ' 1, 1605 {paras 2 & 4); R.P Kapur vs. State of Punjab AIR 1960 SC 866 (para 6); Sooraj Devi vs. Pyare Lal & another AIR 1981 SC 736 (para 5); Dr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University 2008(8) JT 621; Bharat Petroleum Cor- poration Ltd. & another vs. N.R. Vairamani and another AIR 2004 SC 4778 and Nikhil Merchant vs. Central Bureau of In- vestigation & Anr. JT 2008 (9) SC 192 - relied on. -t-

1.6 Even in the judgment of this Court in the case of H Divisional Manager Araval/i Golf Club, where emphasis has ~ . i .f MANOJ SHARMA v. STATE & ORS. 543 ---i been laid on judicial restraint it has been mentioned that A sometimes judicial activism can be resorted to by the Court where the situation forcefully requires it in the in terest of the country or society. (Para - 21) [553-G&H] Divisional Manager, Aravali Golf Club & another vs. Chander Hass & Anr. JT 2008(3) SC 221 and Government of 8 Andhra Pradesh & Ors. vs. Smt. P Laxmi Deviji (2008) 2 SC 639 - relied on. Brown vs. Board of Education 341 U.S. 483; Miranda vs. Arizona 384 U.S. 436; Roe vs. Wade 410 U.S. 113 - referred c to.

2.1 There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sec tions 395, 307 or 3048 cannot be compounded and hence proceedings in those provisions cannot be quashed by D the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of compromise. However, in some other cases, (like those akin to a civil nature) the proceedings can be quashed by the High Court if the parties have come to an amicable settlement E even though the provisions are not compoundable. (Para - 23) [554-D&E]

2.2 While in the present case, the criminal proceed.; ings deserve to be quashed, the question may have to be decided in some subsequent decision or decisions (pref- F erably by a larger Bench) as to which non-compoundable cases can be quashed under Section 482 Cr.P.C. or Ar ticle 226 of the Constitution on the basis that the parties have entered into a compromise. (Para - 22) [554-B&C]

2.3 The decision in the case of B. S. Joshi should not G be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise between the parties. After all, a crime is an offence against society, and not merely against a private H 544 SUPREME COURT REPORTS [2008] 14 S.C.R. A individual. (Para - 24) [554-H; 555-:Al •\. . . ·r~. B. S. Joshi & Ors. vs. State of Haryana_ (2003) 4 S.CC 67'.$_.: - referred to. Para -12 .. ... . : ·.)t-_ .. ; ' . Para·,; 12 ... CASE LAW REFER~NCE . . . Referred·to