High Court
Legal Reasoning
cria-2546.2311want to avoid bitter relationship between the families as they arestated to be residing in same vicinity. Certainly, in view of theFull Bench decision of this Court in Maya Sanjay Khandare vs.State of Maharashtra (supra), this can be considered as a rarestof the rare case and in order to do complete justice, case ismade out for exercise of inherent powers of this Court underSection 482 of the Code of Criminal Procedure. In addition, wemay also observe here that the main point that was before thisCourt in the Appeal was, as to whether there was intention tocommit murder of Wasim. Even after taking note of the medicalevidence, especially the statement in the cross-examination, yetthat cannot be the only criteria to come to a conclusion aboutthe intention. In the event this Court would have come to theconclusion that offence under Section 307 of the Indian PenalCode is not made out, then it would have gone down to Section326, wherein also no doubt the maximum punishment isimprisonment for life. But there could have been a possibility ofreduction of sentence. Both the accused were arrested on 28thApril 2012 and were in jail till 23rd May 2012. Therefore, that isone additional circumstance which we are considering forexercising our inherent powers. However, at the same time cria-2546.2312taking into consideration the injury that has been sustained tothe injured and the facts of the case, we are of the opinion thatcost is required to be imposed to the extent of Rs.1,00,000/-(Rupees One Lakh only) on the applicants for utilizing the entiremachinery.13.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 High
Arguments
cria-2546.231 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2546 OF 20231) Matin Gaffar Shaikh, Age-34 years, Occu:Business, R/o-Indiranagar, Kothi, Ahmednagar, District-Ahmednagar,2) Mobin Gaffar Shaikh, Age-29 years, Occu:Business, R/o-Indiranagar, Kothi, Ahmednagar, District-Ahmednagar. ...APPLICANTS VERSUS 1) The State of Maharashtra, Through Police Station Officer, Kotwali Police Station, Ahmednagar District-Ahmednagar2) Wasim Ajij Shaikh, Age-25 years, Occu:Business, R/o-Zendigate, Ahmednagar, District-Ahmednagar. ...RESPONDENTS ... Mr. Shaikh Mazhar A. Jahagirdar Advocate for Applicants. Mr. S.V. Hange, A.P.P. for Respondent No.1. Mr. N.S. Jaju Advocate for Respondent No.2. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 22nd AUGUST, 2024 cria-2546.232 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 Additional Sessions Judge,Ahmednagar in Sessions Case No.130 of 2013 on 24th March2021, thereby applicant Nos.1 and 2 were convicted for theoffence punishable under Section 307 read with Section 34 ofthe Indian Penal Code and Section 323 read with Section 34 ofthe Indian Penal Code. Criminal Appeal No.209 of 2021 is filedby the applicants challenging the said conviction and the same ispending before this Court (learned Single Bench).3.Learned Advocate for the applicants and respondent No.2are submitting that though after the full-fledged trial before thelearned Additional Sessions Judge the applicants are convicted,yet now during the pendency of the appeal, due to theintervention of the elderly persons, relatives, compromise has cria-2546.233taken place. Respondent No.2 has filed the affidavit-in-reply. Hereiterates that he has filed the said affidavit without there beingany coercion or misrepresentation on the part of the applicantson him. He reiterates that he wants to keep the relationship infuture since they are resident of the same vicinity. He alsosubmits that in the cross case bearing Sessions Case No.7 of2018 decided by the same Additional Sessions Judge on thesame day, wherein he was accused, he came to be acquittedfrom the offence punishable under Sections 323, 324, 504, 506read with Section 34 of the Indian Penal Code.4.Learned Advocate for the applicants and learned Advocatefor respondent No.2 submits that the conviction be quashed andset aside.5.Per contra, the learned APP strongly opposes theapplication and submits that the prosecution had examined in allseven witnesses to bring home the guilt of the accused persons.Grievous injuries were caused to respondent No.2 and witness.The weapons those were used were iron rod and wooden cudgel.The medical officer who was examined to prove those injuries, cria-2546.234has opined that when injured Wasim was taken to the hospital,he was in unconscious state and was having history of vomitting.He found CLW on left parietal region measuring 5 X 2 1 cm. X-ray and CT Scan showed that the patient was having subduralhemorrhage and therefore, the patient was referred to SasoonHospital for further treatment. In the cross-examination, thismedical witness has stated that if surgery would not have beenperformed then the injury would have been fatal. Therefore, theingredients of the offence under which the charge was framed,were proved beyond reasonable doubt. Now, in the affidavit-in-reply, respondent No.2 accepts that he has received an amountof Rs.10,00,000/- from the applicants. Thus, it will not be,therefore, proper that upon receipt of amount the convictiongets set aside. This would give a wrong message in the public.Therefore, inherent powers should not be used in the presentcase. 6.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 State cria-2546.235of 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.The 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 the cria-2546.236finality 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. 7.We are also taking note of the Full Bench decision of thisCourt in the case of Maya Sanjay Khandare vs. State ofMaharashtra, 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…..” cria-2546.2378.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 statutoryframework, 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.”9.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 Supreme cria-2546.238Court 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 beexercised in a limited way otherwise disadvantage may besought by such repeated proceedings.10.Now, coming to the facts of the case wherein we arerequired to call upon to exercise our inherent powers, it is theprosecution story that one Kalim Jahagirdar lodged a report (whoappears to be not an injured person). According to his report,around 8.45 p.m. on 27th April 2012 he had gone to the ChineseCart serving food, which is run by the accused persons. He hasgone along with Kalil Sayyad, Wasim Shaikh and Juber Shaikh inOmni Van. They stopped the Van near the cart whereupon theinformant gave order for two chicken rice. That order was placedon the food stall of accused Mobin. Thereafter informant went tothe hand cart of accused Matin and placed the order for chickenlollipop. When he was chitchatting with his friend, injured Wasim cria-2546.239came and asked as to what has happened their order of Lollipop.Thereupon accused Matin got annoyed and slapped to Wasim.Informant asked as to why he slapped to Wasim. Matin repliedthat Wasim has unnecessarily spoken about the order andthereupon he got annoyed. Thereafter informant and his friendstook Wasim to another food stall. Then accused Momin armedwith iron rod, accused Matin armed with wooden cudgel came atthe spot and gave blow of iron rod on the head of Wasim.Informant tried to rescue Wasim. At that time Matin assaultedhim with wooden cudgel. Wasim was assaulted by both theaccused with iron rod and wooden cudgel. Wasim sustainedinjuries to his head. Informant sustained injury to his left arm.Then Wasim was taken to the civil hospital.11.Thus, it is to be noted from this story that it was not thepremeditated act and it appears that it took of in a spur ofmoment. Another fact to be noted is that when the trial tookplace, it was totally against three persons. Out of them onlypresent two applicants came to be convicted. It also appearsthat there was a cross sessions case, wherein the informant andthe injured were accused and faced the trial for the offence cria-2546.2310punishable under Sections 323, 324, 504, 506 read with Section34 of the Indian Penal Code. The learned Sessions Judge, in hisJudgment, has not even taken note of the cross case. Now thedispute has been settled. No doubt the applicants have paid anamount of Rs.10,00,000/- by way of cheque to injured Wasim,which is stated to be for the medical expenses which wererequired to be borne by him i.e. by way of compensation. Wecertainly agree that merely by payment of compensation aperson cannot get rid of the conviction which has been awardedafter a full-fledged trial. But herein this case, the Appeal ispending before this Court itself and there is order attached inthis proceedings which is passed by the learned Single Judgewhereby, pending the Appeal, the substantive sentence ofimprisonment imposed by the trial trial Court was suspended.The observations therein are also taken note of now. 12.As per the guidelines in Ramgopal and another vs. theState of Madhya Pradesh (supra), it can be seen that now thereis voluntariness of compromise between the accused and theinformant, victim. They have reiterated that they want to keepgood relations herein after and by entering into compromise they
Decision
cria-2546.2313Court Bench at Aurangabad was constituted. The Registry wasentrusted 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. 14.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 and 2 and respondent No.2are allowed to compound the offence.Consequently, we quash and set aside theconviction of the applicants in Sessions CaseNo.130 of 2013 by the learned Additional SessionsJudge, Ahmednagar dated 24th March 2021 for theoffence punishable under Sections 307 read withSection 34 of the Indian Penal Code and Section323 read with Section 34 of the Indian Penal Code. cria-2546.2314(III)Consequently, Criminal Appeal No.209 of2021 pending before the learned Single Judge ofthis Court stands disposed of. (IV)It appears that the fine amount that wasimposed, has been deposited by the applicants withSessions Court, Ahmednagar. It is directed to beconfiscated / credited to the Government.(V)The applicants to deposit cost ofRs.1,00,000/- (Rupees One Lakh only) with theRegistry i.e. the Committee as indicated inParagraph No.11, on or before 9th September 2024.After the deposit of the said amount, theCommittee is at liberty to utilize the said amountfor purchase of articles / instruments useful for thepatients visiting the Medical Dispensary situated inthe High Court premises.[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/AUG24