Mr.Hansrajsaxena v. State rep. by the Inspector of Police R-7, K.K.Nagar Police Station, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 27.07.2011CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCrl.O.P.Nos.17635 and 17636 of 2011andM.P.Nos.1 and 1 of 2011Mr.Hansrajsaxena ..Petitioner/ Accused in both Crl.O.PsVersus1.State rep. by the Inspector of Police R-7, K.K.Nagar Police Station, Chennai. (Crime No.849 of 2011)2.V.S.Shangmugaval ..Respondents in Crl.O.P.No.17635 of 20111.State rep. by the Inspector of Police R-7, K.K.Nagar Police Station, Chennai. (Crime No.833 of 2011)2.T.Selvaraj .. Respondents in Crl.O.P.No.17636 of 2011PRAYER in Crl.O.P.Nos.17635 of 2011 : Criminal Original Petitionfiled under section 482 of the Criminal Procedure Code praying tocall for the records of the Crime No.849 of 2011 on the file ofthe Inspector of Police, R7 K.K.Nagar Police Station quash same.PRAYER in Crl.O.P.Nos.17636 of 2011 : Criminal Original Petitionfiled under section 482 of the Criminal Procedure Code praying tocall for the records of the Crime No.833 of 2011 on the file ofthe Inspector of Police, R7 K.K.Nagar Police Station quash same.For Petitioner:Mr.V.Gopinath(in both crl.o.p.'S)Senior counselfor Mr.A.SelvendranFor respondents : Mr.I.Subramanian for (R1)(in both Crl.O.P.'s)Public Prosecutor(in Crl.O.P.No.17635 Mr. sriramulu for of 2011):Mr.P.Suresh Babu (R2)for defacto complainant https://hcservices.ecourts.gov.in/hcservices/ (in Crl.O.P.No.17636 of 2011) :Ms.R.t.Shyamala (R2) C O M M O N O R D E RIn both the petitions the petitioner is one and the same andthe defacto complainants are shown as R2. Two cases are registeredagainst the petitioner by the first respondent police, one inCrime No.833 of 2011 for the offences under Sections 406, 420,385, 506(ii) IPC and another case in Crime No.849 of 2011 for theoffences under Sections 147, 342, 323, 324, 385 and 506(ii) I.P.C.These Criminal Original Petitions are filed to quash theproceedings against the petitioner, on the ground that matter hasbeen amicably settled between the petitioner and the defactocomplainant. Affidavits are also filed by the defactocomplainants to that effect.2. Mr.V.Gopinath learned Senior counsel appearing for thepetitioner submitted that the compromise had been arrived by theparties and the matter was also amicably settled and the defactocomplainants are not interested in pursuing the complaint and theyalso requested police to drop action in the complaint given bythem against the accused. The learned senior counsel furthersubmitted that the compliant indicates that the dispute betweenthe defacto complainant and the accused arose out of a commercialtransaction and they are the cases of civil in nature. Thelearned senior counsel appearing for the petitioner relied on thefollowing decisions of the Supreme Court:1.B.S.Joshi and others Vs. State of Haryana reported in 2003 SCC (CRL) 8482.Nikhil Merchant Vs. Central Bureau of Investigation reported in 2008 (3) SCC (CRL) 8583.Jagdish Chanana and others Versus State of Haryana reported in 2009 (3) SCC (CRL) 11573.The learned senior counsel Mr.Sriramulu appearing fordefacto complainant in Crl.O.P.No.17635 of 2011 andMs.R.J.Shyamala appearing for the defacto complainant inCrl.O.P.No.17636 of 2011 submit that defacto complainants are nowpresent before the Court and also submitted that the matter hasbeen settled and they have no objection for the proceedings to bequashed against the accused.4. Mr.I. Subramanian, learned Public Prosecutor submittedthat the statement of seven witnesses have already been recordedrelating to Crime No.849 of 2011 and as far as the petitioner isconcerned, he is only the Chief Operating officer of the companyand the transaction as per the complaint does not stop merely withthe petitioner and the defacto complainant. The entire https://hcservices.ecourts.gov.in/hcservices/ transaction should be probed by the prosecution at this stage. Itmay not be proper to allow the applications filed by thepetitioner to quash the proceedings. The learned Public Prosecutorrelied on the decision of Sushil Suri Versus C.B.I. reported in2011 (2) MLJ 2011. 5.This Court considered the submissions and perused therecords. A Perusal of the complaint in Crime No.833 of 2011, showsthat there was an agreement with regard to release of film and thedefacto complainant paid a sum of Rs.1,25,00,000/-. Afterreleasing the film an amount of Rs.82,53,374/- was due to thedefacto complainant from the petitioner. When the defactocomplainant demanded the amount, he was threatened by theaccused/petitioner. The occurrence is said to have taken place on05.01.2011 and the complaint was given on 01.07.2011. Accordingto the complainant, the reason for the delay in lodging thecomplaint is that due to threat and fear he had not given thecomplaint. 6.The complaint in Crime No.849 of 2011 shows that thedefacto complainant was releasing the films for Sun pictures andthe defacto complainant had to pay a sum of Rs.60,00,000/- to Sunpictures. He was not in a position to pay the amount but he wentto take delivery of the picture. On 11.02.2010, he was abused andassaulted by the petitioner and the other accused. He has giventhe complaint on 06.07.2011. He had not given the complaintimmediately due to fear and threat.7. In the decision of the Honourable Supreme Court inB.S.Joshi and others vs. State of Haryana and another reported in(2003 SCC (Crl) 848), it has been held as follows:"14. There is no doubt that the object ofintroducing Chapter XX-A containing Section 498-Ain the Indian Penal Code was to prevent torture toa woman by her husband or by relatives of herhusband. Section 498-A was added with a view topunishing a husband and his relatives who harass ortorture the wife to coerce her or her relatives tosatisfy unlawful demands of dowry. Thehypertechnical view would be counterproductive andwould act against interests of women and againstthe object for which this provision was added.There is every likelihood that non-exercise ofinherent power to quash the proceedings to meet theends of justice would prevent women from settlingearlier. That is not the object of Chapter XX-A ofthe Indian Penal Code.15. In view of the above discussion, we holdthat the High Court in exercise of its inherentpowers can quash criminal proceedings or FIR orcomplaint and Section 320 of the Code does notlimit or affect the powers under Section 482 of theCode." https://hcservices.ecourts.gov.in/hcservices/

8. In yet another decision of the Honourable Supreme Courtin Nikhil Merchant vs. Central Bureau of Investigation and anotherreported in (2003 SCC (Crl) 858), it has been observed as follows:"8. Apart from the said decision, reliance wasalso placed on another decision of this Court inB.S. Joshi v. State of Haryana reported in ((2003)4 SCC (Cri) 848) wherein while dealing with theproceedings under Sections 498-A and 406 of thePenal Code involving matrimonial disputes andoffences, this Court held that even though theprovisions of Section 320 of the Code of CriminalProcedure would not apply to such offences whichare not compoundable, it did not limit or affectthe powers under Section 482 CrPC and the powersconferred on the High Courts and the Supreme Courtunder Articles 226 and 136 of the Constitution ofIndia. Referring to the decision of this Court inState of Haryana v. Bhajan Lal reported in (1992SCC (Cri) 426) this Court observed that thecategories indicated in the said case whichwarranted exercise of power under Section 482 CrPCwere only illustrative and not exhaustive. ThisCourt ultimately held that the High Court inexercise of its inherent powers can quash criminalproceedings or an FIR or complaint and Section 320CrPC does not limit or affect the power of the HighCourt under Section 482 of the Code.9 to 28...........................29. Despite the ingredients and the factualcontent of an offence of cheating punishable underSection 420 IPC, the same has been madecompoundable under sub-section (2) of Section 320CrPC with the leave of the court. Of course,forgery has not been included as one of thecompoundable offences, but it is in such cases thatthe principle enunciated in B.S. Joshi case ((2003)4 SCC (Cri) 848) becomes relevant.30. In the instant case, the disputes betweenthe Company and the Bank have been set at rest onthe basis of the compromise arrived at by themwhereunder the dues of the Bank have been clearedand the Bank does not appear to have any furtherclaim against the Company. What, however, remainsis the fact that certain documents were alleged tohave been created by the appellant herein in orderto avail of credit facilities beyond the limit towhich the Company was entitled. The disputeinvolved herein has overtones of a civil disputewith certain criminal facets. The question which isrequired to be answered in this case is whether thepower which independently lies with this Court toquash the criminal proceedings pursuant to the https://hcservices.ecourts.gov.in/hcservices/ compromise arrived at, should at all be exercised?31. On an overall view of the facts asindicated herein above and keeping in mind thedecision of this Court in B.S. Joshi case reportedin ((2003) 4 SCC (Cri) 848) and the compromisearrived at between the Company and the Bank as alsoClause 11 of the consent terms filed in the suitfiled by the Bank, we are satisfied that this is afit case where technicality should not be allowedto stand in the way in the quashing of the criminalproceedings, since, in our view, the continuance ofthe same after the compromise arrived at betweenthe parties would be a futile exercise."9. It is observed in the decision of the Honourable SupremeCourt in Jagdish Chanana and Others vs. State of Haryana andAnother (2009(3) SCC (Cri) 1157) as follows:"3. In the light of the compromise, it isunlikely that the prosecution will succeed in thematter. We also see that the dispute is a purelypersonal one and no public policy is involved inthe transactions that had been entered into betweenthe parties. To continue with the proceedings,therefore, would be a futile exercise. Weaccordingly allow the appeal and quash FIR No. 83dated 12-3-2005, PS City Sonepat and all consequentproceedings."10. It is also observed by the Honourable Supreme Court inManoj Sharma vs. State and Others reported in (2009(1) LW (Crl)137) as follows:"23. There can be no doubt that a case underSection 302 IPC or other serious offences likethose under Sections 395, 307 or 304-B cannot becompounded and hence proceedings in thoseprovisions cannot be quashed by the High Court inexercise of its power under Section 482 CrPC or inwrit jurisdiction on the basis of compromise.However, in some other cases (like those akin to acivil nature), the proceedings can be quashed bythe High Court if the parties have come to anamicable settlement even though the provisions arenot compoundable. Where a line is to be drawn willhave to be decided in some later decisions of thisCourt, preferably by a larger Bench (so as to makeit more authoritative). Some guidelines will haveto be evolved in this connection and the mattercannot be left at the sole unguided discretion ofJudges, otherwise there may be conflictingdecisions and judicial anarchy. A judicialdiscretion has to be exercised on some objective https://hcservices.ecourts.gov.in/hcservices/ guiding principles and criteria, and not on thewhims and fancies of individual Judges. Discretion,after all, cannot be the Chancellor's foot.24. I am expressing this opinion because Shri B.B.Singh, learned counsel for the respondent hasrightly expressed his concern that the decision inB.S. Joshi case1 should not be understood to havemeant that Judges can quash any kind of criminalcase merely because there has been a compromisebetween the parties. After all, a crime is anoffence against society, and not merely against aprivate individual."11. In the decision cited by the learned Public Prosecutor,the Honourable Supreme Court in Gian Singh vs. State of Punjab andAnother reported in (2011(2) MLJ (Crl) 201(SC)) has observed asfollows:"4. Section 420 IPC, one of the counts onwhich the petitioner has been convicted, no doubt,is a compoundable offence with permission of theCourt in view of Section 320, Cr.P.C., butSection 120-B IPC, the other count on which thepetitioner has been convicted, is a non-compoundable offence. Section 120-B (Criminalconspiracy) is a separate offence and since it is anon-compoundable offence, we cannot permit it to becompounded.5. The Court cannot amend the statute andmust maintain judicial restrain in thisconnection. The Courts should not try to take overthe function of the parliament or executive. It isthe legislature alone which can amend Section 320Cr.P.C.6. We are of the opinion that the above threedecisions require to be reconsidered as, in ouropinion, something which cannot be done directlycannot be done indirectly. In our, prima facieopinion, non-compoundable offences cannot bepermitted to be compounded by the Court, whetherdirectly or indirectly. Hence, the above threedecisions do not appear to us to be correctlydecided.7. It is true that in the last two decisions,one of us, Honourable Mr.Justice Markandey Katju,was a member but a Judge should always be open tocorrect his mistakes. We feel that these decisionsrequire reconsideration and hence we direct thatthis matter be placed before a larger Bench toreconsider the correctness of the aforesaid threedecisions."Though the Honourable Supreme Court has referred the point to alarger bench whether the court has power to permit the non-compoundable offences to be compounded, as on date, the Judgments https://hcservices.ecourts.gov.in/hcservices/ cited by the learned counsel for the petitioner being notoverruled, this Court is of the view that the power under Section482 Cr.P.C could be exercised with care and caution in appropriatecases permitting the compounding of non-compoundable offences.12. In both the cases, the dispute arose out of commercialtransaction. This Court feels that the defacto complainants havecome forward to quash the proceedings by arriving at an amicablesettlement and this Court feels that continuation of theproceedings would serve no useful purpose and it would be a futileexercise.13. Hence proceedings in Crime No.833 of 2011 and 849 of 2011on the file of R-7, K.K.Nagar Police Station, Chennai, arequashed. 14. These Criminal Original Petitions are allowed.Consequently, connected Miscellaneous Petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.arr/ksrTo1.The Inspector of Police R-7, K.K.Nagar Police Station, Chennai.2.The Public Prosecutor, High Court, Madras. 2 ccs to Mr.A. Selvendiran, Advocate, Sr. 48619, 486181 cc to Mr.R.T. Shyamala, Advocate, Sr. 45867Crl.O.P.Nos.17635 and 17636 of 2011 RSY (CO)kk 10/8