Report No. 237

4. Approach of the Supreme Court in Certain Cases

4.1 As the offence under Section 326 IPC was not compoundable in law, the Supreme Court having regard to the long lapse of time and settlement of the dispute between the parties reduced the sentence to already undergone three months' imprisonment. Also see Gulab Das v. State of M.P., 2011 (12) SCALE 625.

Yet another approach adopted by the apex Court in dealing with the situations arising from the amicable settlement arrived at between the complainant and the accused in respect of a non-compoundable offence was to quash the proceedings having regard to the facts and circumstances of the case. The cases of B.S. Joshi v. State of Haryana, 2003 4 SCC 675 Nikhil Merchant v. CBI, 2008 9 SCC 677 and Manoj Sharma v. State, 2008 (14) SCALE 44 are illustrative of this approach.

4.2 In the first case of B.S. Joshi, the accused were charged with offences under Sections 498A and 406 IPC. An affidavit was filed by the complainant wife that the disputes were finally settled and the accused and the victim prayed for quashing the FIR.

The High Court declined to exercise its inherent power under Section 482 Cr.PC on the ground that power under the said Section cannot be exercised to quash the prosecution for non-compoundable offences even if the parties have settled the dispute. In appeal, the Supreme Court reversed the order of the High Court and held that the High Court in such cases can quash criminal proceedings/FIR/complaint in exercise of its inherent powers under Section 482. The Supreme Court laid down, after discussing the case law on the subject:

"We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing". The Court, however, guardedly said: "It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power". In B.S. Joshi's case, the Supreme Court justified the exercise of power under Section 482 to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non-compoundable.

4.3 The principle laid down in B.S. Joshi's case was cited with approval in the case of Nikhil Merchant v. CBI (supra). That was a case in which charge-sheet was filed against the accused under Section 120-B read with Sections 420, 467, 468 and 471 IPC. Whereas the offence under Section 420 is compoundable, the offence of forgery was not compoundable. The filing of charge-sheet by the CBI was preceded by a suit between the delinquent Company and the Bank in which a compromise was arrived at. Pursuant to that compromise, the appellant-accused who was one of the Directors of the company, filed an application for discharge from the criminal case.

That application was rejected by the High Court. The Supreme Court held: "On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi's case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise".

The Supreme Court thus quashed the proceedings by relying on the ratio of the decision in B.S. Joshi's case. The following pertinent observations were made at para 29: "Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under sub-section(2) of Section 320 CrPC with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshi case becomes relevant".

The same course of action was adopted in Manoj Sharma's case, 2008 (14) SCALE 44. Very recently, the Supreme Court in Shiji @ Pappu v. Radhika, 2010 (12) SCALE 588 held that simply because an offence is not compoundable under Section 320 CrPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 to quash the prosecution.