High Court
Legal Reasoning
cria-2223.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2223 OF 20241) Vikas S/o Kondiba Thorbole, Age-45 years, Occu:Agri.,2) Ashruba S/o Tatyaba Thorbole, Age-48 years, Occu:Agri.,3) Rekha W/o Ashruba Thorbole, Age-40 years, Occu:Agri.,4) Dattatrya S/o Kondiba Thorbole, Age-49 years, Occu:Agri.,All are R/o- Gojwada, Taluka-Washi,District-Osmanabad. ...APPLICANTS VERSUS 1) The State of Maharashtra, Through Police Inspector, Police Station, Washi, Taluka-Washi, District-Osmanabad,2) Ramraje S/o Kashinath Thorbole, Age-42 years, Occu:Agri.,3) Laxman S/o Kashinath Thorbole, Age-40 years, Occu:Agri.,Respondent Nos.2 and 3 are:R/o-Gojwada, Taluka-Washi,District-Osmanabad. ...RESPONDENTS
Legal Reasoning
cria-2223.242 ... Mr. R.D. Kawade Advocate for Applicants. Dr. Kalpalata Patil-Bharaswadkar, A.P.P. for Respondent No.1. Mr. Amol G. Vasmatkar Advocate h/f. Mr. S.N. Janakwade Advocate for Respondent Nos. 2 and 3. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 22nd AUGUST, 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Heard finally with the consent of the learnedAdvocates for the rival parties. 2.Present Application has been filed under Section 482 of theCode of Criminal Procedure for quashing the Judgment and orderof conviction passed by the learned Judicial Magistrate FirstClass, Washi, District-Osmanabad in Regular Criminal CaseNo.62 of 2015 dated 3rd May 2021 for the offence punishableunder Sections 326, 324 read with Section 34 of the Indian PenalCode and to pass further orders in respect of Criminal AppealNo.9 of 2021 pending before the learned Additional SessionsJudge, Bhoom, District-Osmanabad, which challenges the saidconviction. cria-2223.243 3.Learned Advocate for the applicants and respondent Nos.2and 3 have submitted that though after the full-fledged trialbefore the learned Magistrate the applicants are convicted, yetnow during the pendency of the Appeal due to the interventionby the respected persons from the village, common relatives,there is a compromise. The applicants and respondent Nos.2and 3 are distantly related. If the conviction is maintained, thenin future it would bring hinder in relationship. They have decidedto bury the differences and live peacefully. Accordingly, anapplication was filed in Criminal Appeal No.9 of 2021 atExhibit-51 for recording of the compromise and allowing them tocompound the offence. However, by order dated 21st March2024, the learned Additional Sessions Judge, Bhoom rejected thesaid application and therefore, the applicants had no option butto knock the doors of this Court under Section 482 of the Codeof Criminal Procedure. They both have prayed for granting thereliefs claimed.4.Per contra, the learned APP strongly opposed theapplication and submits that the prosecution had examined in allten witnesses to bring home the guilt of the accused. Grievousinjuries were caused by the applicants to the informant and the cria-2223.244injured. The weapons used in the commission of the crime aresticks and axe. Axe is a dangerous weapon. Taking intoconsideration the medical evidence as well as ocular evidence,the learned Magistrate had held that the offence under Section326 has been made out in respect of the injuries to informantand witness Laxman. Now, on some grounds the informant andthe injured are contending that there is a compromise. Suchcompromises are against the public interest and therefore, theinherent powers should not be used in such cases. 5.At the outset, we would like to consider the legal point firston this aspect, as to whether after the conviction a compromisecan be allowed to be recorded and there upon the conviction canbe set aside. In the case of Ramgopal and another vs. the Stateof Madhya Pradesh, (2022) 1 Mh. L.J. (Crl) 291, it has beenobserved that, having regard to the nature of the offence andthe fact that parties have amicably settled their dispute and thevictim has willingly consented to the nullification of criminalproceedings, the High Court can quash such proceedings inexercise of its inherent powers under Section 482 of the Code ofCriminal Procedure, even if the offences are non-compoundable. cria-2223.245The High Court can indubitably evaluate the consequentialeffects of the offence beyond the body of an individual andthereafter adopt a pragmatic approach, to ensure that thefelony, even if goes unpunished, does not tinker with or paralyzethe very object of the administration of criminal justice system.We are also taking note of the decision in Ramawatar vs. Stateof Madhya Pradesh, (2022) 13 SCC 635 wherein Ramgopal andanother vs. the State of Madhya Pradesh (supra) was consideredand it was observed that “We, however, put the further caveatthat the powers under Article 142 or under Section 482 of theCr.P.C. are exercisable in post-conviction matters only when anappeal is pending before one or the other Judicial forum. This ison the premise that an order of conviction does not attain finalitytill the accused has exhausted his/her legal remedies and thefinality is subjudice before an appellate Court.” Thus, thependency of criminal proceedings, be that may before the finalCourt, is sine qua non to involve the superior Court’s plenarypowers to do complete justice. 6.We are also taking note of the Full Bench decision of thisCourt in the case of Maya Sanjay Khandare vs. State of cria-2223.246Maharashtra, 2021(1) Mh.L.J. 613, wherein it is observed that:-“Hence, we hold that ordinarily the contention that theconvict and the informant/complainant have enteredinto a compromise after the judgment of conviction canbe raised only before the appellate/revisional Court inproceedings challenging such conviction. It would be asound exercise of discretion under Section 482 of theCode and in accordance with the law of the land torefuse to quash criminal proceedings post-conviction fora non-compoundable offence only on the ground thatthe parties have entered into a compromise. Insteadthe Court can permit the convicted party to bring to thenotice of the appellate/revisional Court the aspect ofcompromise. Having said so, it is only in rarest of rarecases that the Court may quash the criminalproceedings post-conviction for a non-compoundableoffence on settlement between the convict and theinformant/complainant…..”7.Here, it is to be noted that observations in Paragraph 19 inRamgopal and another vs. the State of Madhya Pradesh (supra)would be important for us, which reads thus:-“19. We thus sum-up and hold that as opposed toSection 320 Cr.P.C. where the Court is squarely guidedby the compromise between the parties in respect ofoffences ‘compoundable’ within the statutory cria-2223.247framework, the extra-ordinary power enjoined upon aHigh Court under Section 482 Cr.P.C. or vested in thisCourt under Article 142 of the Constitution, can beinvoked beyond the metes and bounds of Section 320Cr.P.C. Nonetheless, we reiterate that such powers ofwide amplitude ought to be exercised carefully in thecontext of quashing criminal proceedings, bearing inmind: (i) Nature and effect of the offence on theconscious of the society; (ii) Seriousness of the injury,if any; (iii) Voluntary nature of compromise betweenthe accused and the victim; & (iv) Conduct of theaccused persons, prior to and after the occurrence ofthe purported offence and/or other relevantconsiderations.”8.The said Paragraph was referred in Ramawatar vs. State ofMadhya Pradesh (supra) also and it has been affirmed. Thus,taking note of the catena of the Judgments referred hereinbefore and also other such decisions, especially that of theHon’ble Supreme Court, it can be said that the Hon’ble SupremeCourt was of the view that when the dispute is settled, then itshould be seen by the Court that the complete justice is done inorder to maintain peace and relation between the parties if theyarrived at a compromise at the later point of time, within theparameters laid down, such powers under Section 482 can beexercised. Definitely these powers are then required to be cria-2223.248exercised in a limited way otherwise disadvantage may besought by such repeated proceedings.9.Now, coming to the facts of the case wherein we arerequired to call upon to exercise our inherent powers, it is theprosecution story that the informant while undertaking treatmentin Government Hospital, gave report that he was proceeding inTractor bearing No.MH-13-AJ-1832 around 4.00 p.m. on 27thMarch 2015 to dump the cow dung in a field. He was proceedingfrom the field of one Sahadev Mahadev Thorbole. At that timeone Dattatray Kondiba Thorbole i.e. accused No.4 came thereand asked him not to take the tractor contending that there is awater channel belonging to them on the route. He then abusedthe informant. The other accused persons, who were nearby,came there. Accused No.4 had assaulted the informant with stickon his head causing bleeding injury. Accused No.2 Ashrubaassaulted informant with stick on his left arm and wrist. AccusedNo.3 Rekha assaulted the informant with stone on the back ofthe informant. When informant’s brother Laxman came to rescuehim, at that time accused No.1 Vikas had assaulted the brotherwith axe causing injury to the left cheek. The brother was also cria-2223.249assaulted by accused No.3. Informant’s brother Laxmansustained fracture to the cheek bone. Here, we are taking noteof the fact that the medical officer who was examined before thetrial Judge, has certified that the injuries were grievous and alsocaused due to sharp, dangerous weapon.10.However, it is to be noted that the dispute arose wheninformant tried to take his Tractor from the field where accordingto the accused persons there was their water channel. As per theguidelines in Ramgopal and another vs. the State of MadhyaPradesh (supra), it can be seen that now there is voluntarinessof compromise between the accused and the informant, victim.They have reiterated that they want to keep good relationsherein after and by entering into compromise they want to avoidbitter relationship between the families as they are stated to bedistantly related. The verification regarding the compromise hasbeen done by the Registrar (Judicial) and report has beensubmitted. Certainly, in view of the Full Bench decision of thisCourt in Maya Sanjay Khandare vs. State of Maharashtra(supra), this can be considered as a rarest of the rare case andin order to do complete justice, case is made out for exercise of cria-2223.2410inherent powers of this Court under Section 482 of the Code ofCriminal Procedure. However, at the same time we would imposecost of Rs.40,000/- (Rupees Forty Thousand) on the applicantsfor utilizing the entire machinery. 11.As regards the cost amount to be deposited is concerned,we are considering the Judgment of the learned Single Bench ofthis Court in Writ Petition No.2318 of 2019 (Minakshi ChitraMandir vs, the State of Maharashtra and others), decided on 6thMarch 2023, wherein note was taken of the medical dispensaryavailable at the High Court, which is run by the State has basicfacilities but it is not able to cope up with the emergentsituations for want of some necessary machinery. Note wastaken that if a person suddenly suffers from heart attack in theHigh Court premises, then it would take at least forty fiveminutes to transport such person to the nearest hospital andtherefore, in the said case a three members Committee,consisting of the President of the Bar Association of High Court,Aurangabad, Dr. Sanjay Varade, Medical Officer of the High CourtMedical Dispensary and Registrar (Administration) of the HighCourt Bench at Aurangabad was constituted. The Registry was cria-2223.2411entrusted to receive the payment byway of cost and then tomake payment of the machinery or any other instrumentpurchased, as per the directions of the Committee. We wouldutilize the said facility / order by which the Committee wascreated and direct the applicants to deposit the cost with theRegistry, with this Committee. 12.In view of the above-said observations, following order ispassed:- O R D E R(I)The Application is hereby allowed.(II)Applicant Nos.1 to 4 and respondent Nos. 2and 3 are allowed to compound the offence.Consequently, we quash and set aside theconviction of the applicants in Regular CriminalCase No.62 of 2015 by the learned JudicialMagistrate First Class, Washi, District-Osmanabaddated 3rd May 2021 for the offence punishableunder Sections 326, 324 read with Section 34 ofthe Indian Penal Code.(III)Consequently, Criminal Appeal No.9 of 2021pending before the learned Additional Sessions cria-2223.2412Judge, Bhoom, District-Osmanabad standsdisposed of. (IV)It appears that an amount of Rs.4800/- hasbeen deposited by the applicants with Washi Courttowards the fine amount that was imposed. It isdirected to be confiscated / credited to theGovernment.(V)The applicants to deposit cost of Rs.40,000/-(Rupees Forty Thousand only) with the Registry i.e.the Committee as indicated in Paragraph No.11, onor before 9th September 2024. After the deposit ofthe said amount, the Committee is at liberty toutilize the said amount for purchase of articles /instruments useful for the patients visiting theMedical Dispensary situated in the High Courtpremises.[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/AUG24