Sathapillai & Ors. v. State

The Appellants/Accused 1 & 2 namely, Sathapillai and Kamarasuwere already released on bail in and by order of this Court dated31.07.2007 in Crl.M.P.No.1 of 2007 in Crl.A.No.660 of 2007IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 14.08.2009CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal.No.660 of 20071. Sathapillai2. Kamarasu.. Appellants/Accused 1 & 2VersusState. Rep. by theInspector of Police,Sendurai Police Station,Perambalur District... Respondent/ComplainantCriminal appeal filed under Section 374(2) Cr.P.C. against theconviction and sentence made in S.C.No.6 of 2007 dated 19.07.2007 onthe file of the Additional District and Sessions Judge (Fast TrackCourt), Ariyalur.For Appellants:Mr.D.VeerasekaranFor Respondent:Mr.J.C.Durai raj Government Advocate (Criminal side) -------------- ORDERThe appellants herein stand convicted by the learned AdditionalSessions Judge (Fast Track Court), Ariyalur in S.C.No.6 of 2007, forthe offences under Sections 427 IPC and 3(i) of the Tamil Nadu PublicProperty (Prevention of Damage and Loss) Act, 59 of 1992, andsentenced to undergo simple imprisonment for one year and to pay afine of Rs.5,000/- each, in default to undergo simple imprisonmentfor three months under Section 427 IPC and also to undergo rigorousimprisonment for three years and to pay a fine of Rs.3000/- each indefault to under go simple imprisonment for six months under Section3(1) of the Tamil Nadu Property (Prevention of Damage and Loss) Act.Aggrieved by the said conviction and sentence, the appellants havepreferred this criminal appeal.2. The brief facts of the prosecution case are as follows:-PW-1 Ramalingam is residing in Chennivanam Village, AriyalurTaluk. One Ramasamy is his neighbour. The accused 1 and 2 arebrothers-in-law of the said Ramasamy. There was a civil disputepending between PW-1 and his neighbour Ramasamy. SubsequentlyRamasamy died due to his illness on 12.10.2004 at about 08.00pm.The accused entered into the house of P.W.1 and demolished thebackside of the compound wall. The accused also abused PW-1 usingfilthy language. PW-1 preferred a complaint Ex.P-1. The SubInspector of Police, Sendurai Police Station, received complaint andregistered the case in Cr.No. 228/04 under Sections 294(b), 427, 506(ii) and prepared the First Information Report Ex.P-5. https://hcservices.ecourts.gov.in/hcservices/

3. P.W.6, Sub Inspector of Police took up the investigation andproceeded to the spot and prepared the rough sketch Ex.P.6 andexamined the witnesses. The accused were arrested on the same day on13.10.2004 at 02.20 p.m., near Vellore Bus stand. Subsequently P.W.7took up further investigation and completed the investigation andfiled the final report. 4. To prove the case, the prosecution has examined 7 witnessesand marked 7 exhbits. When the accused were questioned under Section313 Cr.P.C., they denied their complicity. On the defence side, onewitness was examined and two documents were marked.5. The learned judge after considering the evidence and documentsconvicted the accused as stated above.6. Mr.D.Veerasekaran, learned counsel appearing for theappellants submits that the whole occurrence was only due to thecivil dispute and at the relevant time, there was a civil suitbetween Ramasamy, who is the brother-in-law of the accused andP.W.1. The occurrence had taken place on the death of the saidRamasamy. The whole occurrence was only due to civil dispute. Nowthe matter has been compromised between the parties. It was only atrivial incident which has been boosted up. The learned counsel forthe appellants further submits that the defacto complainant ispresent before this Court and he had filed an affidavit stating thatthe matter has been compromised in the presence of the villageelders, and therefore PW-1 seeks permission of this Court tocompound evidence. 7. Mr.D.Veerasekaran, Learned counsel relied on the decisions ofthe Honourable Supreme Court in B.S. Joshi and others Vs State ofHaryana and another reported in (2003) 4 SCC 675 and in NikhilMerchant Vs Central Bureau of Investigation and another reported in(2008) 9 SCC 677.8. Placing reliance on the above decisions, the learned counselsought permission of this Court for compounding the offences andprayed for setting aside the conviction on the accused. 9. Mr.J.C.Durairaj, learned Government Advocate (Criminal side)submits that PW-1 has given evidence before the trial Court and hisevidence is corroborated by the evidence of P.Ws.2 and 3. The TrialCourt also after considering the evidence convicted the accused. Thelearned Government Advocate (Criminal side) further submits thatthough the matter has been compromised among the defacto complainantand the accused, the offences for which accused stand convicted arenon-compoundable offences and the case also already ended inconviction, and therefore, it is not possible and proper to set asidethe conviction at this stage.10. This court considered the submissions made by both partiesand perused the records and also the affidavit filed by the defactocomplainant - PW-1. https://hcservices.ecourts.gov.in/hcservices/

11. It appears that the motive for the occurrence was only acivil dispute which was pending between the neighbours, i.e., P.W.1and his neighbour Ramasamy. The accused 1 and 2 are relatives of thesaid Ramasamy. The occurrence had taken place on the date on whichthe said Ramasamy had died. Even according to the prosecution case,PW-1 was threatened and the newly constructed wall which was also thesubject matter of the suit was demolished. Now, matter has beencompromised and de facto complainant-PW-1 seeks permission of thisCourt for compounding the offences. 12. The question now arises for consideration is that whether ina case involving non-compoundable offences, whether the high courtcan permit the parties to compound the offence. 13. The Hon'ble Supreme Court in B.S.Joshi and others vs. Stateof Haryana and another reported in (2003) 4 SCC 675) has observed asfollows:"9. The High Court has also relied upon the decisionin case of Surendra Nath Mohanty case (1999) 5 SCC 238 forthe proposition that offence declared to be noncompoundable cannot be compounded at all even with thepermission of the Court. That is of course so. Theoffences which can be compounded are mentioned in Section320. Those offences which are not mentioned therein cannotbe permitted to be compounded. In Mohanty case theappellants were convicted by the trial court for offenceunder Section 307. the High court altered the convictionof the appellants and convicted them for offence underSection 326 and imposed sentence of six months. The trialcourt had sentenced the appellants for a period of fiveyears' R1. The application for compounding was, however,dismissed by the High Court. This court holding that theoffence for which the appellants had been convicted was noncompoundable and, therefore, it could not be permitted tobe compounded but considering that the parties had settledtheir dispute outside the court, the sentence was reducedto the period already undergone. It is however, to beborne in mind that in the present case the appellants hadnot sought compounding of the offences. They hadapproached the Court seeking quashing of FIR under thecircumstances above stated.10....11.In Madhavrao Jiwajirao Scindia V. SambhajiraoChandrojirao Angre (1988) 1 SCC 692), it was held thatwhile exercising inherent power of quashing under Section482, it is for the High Court to take into considerationany special features which appear in a particular case toconsider whether it is expedient and in the interest ofjustice to permit a prosecution to continue. Where, in theopinion of the court, chances of an ultimate conviction arebleak and therefore, no useful purpose is likely to beserved by allowing a criminal prosecution to continue, thecourt may, while taking into consideration the special https://hcservices.ecourts.gov.in/hcservices/ facts of a case, also quash the proceedings.12. The special features in such matrimonial mattersare evident. It becomes the duty of the court to encouragegenuine settlements of matrimonial disputes.13........14........15. In view of the above discussion, we hold that theHigh Court in exercise of its inherent powers can quashcriminal proceedings or FIR or complaint and Section 320 ofthe Code does not limit or affect the powers under Section482 of the Code.14. The Honourable Supreme Court in Nikhil Mechant vs. CentralBureau of Investigation and another reported in ((2008) 9 SCC 677)has observed as follows:"25.It was urged that even if no steps have beentaken by CBI since the charge-sheet was filed in 1998, thesame would not be a ground for quashing the criminalproceedings once the charge-sheet had been filed. Hesubmitted that in view of the decision of this Court inSupreme Court Bar Assn. V. Union of India this Court wouldpossibly not be justified in giving directions in theinstant case even under Article 142 of the Constitution,since the Constitution Bench had held that in exercise ofits plenary powers under Article 142, this court could notignore any substantive statutory provision dealing with thesubject. It is a residuary power, supplementary andcomplementary to the powers specifically conferred on theSupreme Court by statues, exercisable to do completejustice between the parties where it is just and equitableto do so. It was further observed that the power underArticle 142 of the Constitution was vested in the SupremeCourt to prevent any obstruction to the stream of justice.26. The learned Additional Solicitor General submittedthat the power under Article 142 is to be exercisedsparingly and only in rare and exceptional cases and in theabsence of any exceptional circumstances the appeal wasliable to be dismissed.27.Having carefully considered the facts of the caseand the submissions of leaned counsel in regard thereto, weare of the view that, although, technically there is forcein the submissions made by the learned Additional SolicitorGeneral, the facts of the case warrant interference inthese proceedings.28....29....30. In the instant case, the disputes between theCompany and the Bank have been set at rest on the basis ofthe compromise arrived at by them where under the dues ofthe Bank have been cleared and the Bank does not appear tohave any further claim against the Company. What, however,remains is the fact that certain documents were alleged tohave been created by the appellant herein in order to avail https://hcservices.ecourts.gov.in/hcservices/ of credit facilities beyond the limit to which the companywas entitled. The dispute involved herein has overtones ofa civil dispute with certain criminal facets. The questionwhich is required to be answered in this case is whetherthe power which independently lies with this Court to quashthe criminal proceedings pursuant to the compromise arrivedat, should at all be exercised?31. On the overall view of the facts as indicatedherein above and keeping in mind the decision of this Courtin B.S. Joshi case and the compromise arrived at betweenthe Company and the Bank as also Clause 11 of the consentterms filed in the suit filed by the Bank, we are satisfiedthat this is a fit case where technicality should not beallowed to stand in the way in the quashing of the criminalproceedings, since, in our view, the continuance of thesame after the compromise arrived at between the partieswould be a futile exercise."15. In view of the ratio laid down by the Honourable SupremeCourt, it has to be held that even in case of non-compoundableoffences, the High Court by exercising powers under Section 482 ofthe Code of Criminal Procedure, in appropriate cases for the benefitof parties to meet the ends of justice, the proceedings may bequashed. The quashing of the proceedings is possible only when trialhas not come to an end. But in this case, the case had ended inconviction. In such circumstances, it is not possible for thisCourt to permit the parties to compound the non compoundable offencesafter conviction. In view of the fact that the matter has beencompromised between the parties and taking all other circumstances,though the conviction on the accused is confirmed, the sentenceimposed on the accused may be modified.16. The learned counsel for the appellants submitted that theaccused have been already in jail for one week. The sentence ofimprisonment imposed on the accused for both the offences underSection 427 IPC and Section 3(i) of the Public Property (Preventionof Damage and Loss) Act, is reduced to the period already undergone.17. Considering this submission made by the learned counsel forthe appellant that the appellants are poor persons, the fine imposedon them is set aside and the fine amount already paid is directed tobe refunded. 18. In the result, the appeal is partly allowed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ trp/ksrTo1. The Additional District and Sessions Judge Fast Track Court Ariyalur2. The Judicial Magistrate, Ariyalur3. -Do-Thro The Chief Judicial Magistrate, Perambalur4. The Inspector of Police, Sendurai Police Station, Perambalur District.5. The Public Prosecutor, High Court, Madras.6. The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.D.Veerasekaran, Advocate, SR.38608Criminal Appeal No.660 of 2007CKN(CO)SRA(11/9/2009)