JUDGMENT

SURYA KANT, J. –

1. The two petitioners who are real brothers and sons of late Rajmal have invoked the jurisdiction of this Court under Section 482 CrPC for directing the Appellate Court at Hisar to ‘compound’ the offences in the pending criminal appeal arising out of judgement dated 16.03.2009 passed in Criminal Case No.425-I of 2000 by Additional Chief Judicial Magistrate, Hisar, on the basis of compromise dated 08.08.2011 arrived at between them and their step-mother – respondent No.2 (Smt. Reshma Devi) w/o late Rajmal.

2. A brief reference to the facts is necessitated. Respondent No.2 was owner-in-possession of the agriculture land to the extent of 1/5th share in the total land measuring 180K-18M comprised in Khewat/Khasra No.106/168 to 170, situated within the revenue estate of Village Jhajanwala, Tehsil Narwana, District Jind. She acquired ownership of the land as per the consent decree dated 02.02.1998 passed by Civil Court, Narwana in a Civil Suit titled as “Reshma vs. Rajmal” (i.e. husband of Reshma). Rajmal had married twice and both the petitioners were born out of his first marriage whereas respondent No.2 was his second wife.

3. Respondent No.2 filed a criminal complaint under Section 156(3) of CrPC before the Judicial Magistrate with the following allegations:-

a)    That the petitioners wanted to grab her land comprising 1/5th share in the total land measuring 180K-18M whereas she wanted partition of the joint holding and her exclusive possession of the land under her ownership, for which she went to the Tehsil Office at Narwana on 27.05.1997;

b)    One Ganga Singh met her in the Tehsil office and asked her as to why was she there. She told Ganga Singh regarding her dispute with the petitioners and her desire to get her land partitioned. Ganga Singh offered his services for this purpose and took her to his house where she stayed for the night. Next day i.e. on 28.05.1997, Ganga Singh took her to Hisar and obtained her thumb impressions on some blank papers and got her photographed with an assurance that a power of attorney was required to be executed in his favour for getting the land partitioned. One Raghbir Singh Lamberdar of village Jhanjanwala also accompanied Ganga Singh and both of them got a power of attorney executed;

c)    Respondent No.2 then went to her brother Satbir Singh’s house on 29.05.1997 and narrated the whole story regarding the execution of GPA. Her brother allegedly told her that Ganga Singh in fact was in collusion with the sons of the first wife of her husband, namely, the petitioners and the power of attorney was got executed with their connivance;

d)    Respondent No.2 thereafter approached Rattan Kumar Aggarwal, Scribe of the GPA and got cancelled the GPA vide deed dated 29.05.1997 and informed Ganga Singh about the same on 30.05.1997;

e)    Despite cancellation of the GPA and having received information to this effect, Ganga Singh executed and registered a sale deed in favour of the petitioners on 03.06.1997 whereby her entire share in the joint land was ‘sold’ to the petitioners; and

f)     This act of Ganga Singh, Raghbir Singh and the petitioners, according to respondent No.2, amounted to an offence under various provisions of the IPC.

4. The Additional Chief Judicial Magistrate, Hisar vide his judgement and order dated 16.03.2009 (Annexure P1) held the petitioners as well as Ganga Singh, Chandi Ram and Raghbir guilty of the offences under Section 420, 467, 468 read with Section 120-B IPC and sentenced them accordingly, with maximum RI of two years though all the sentences were directed to run concurrently.

5. The petitioners have preferred an appeal against the above-stated order of their conviction and sentence which is still pending consideration before the learned Additional Sessions Judge, Fast Track Court, Hisar.

6. It is, however, not in dispute that the sale deed in question has since been cancelled and ownership of land has been restored in favour of respondent No.2.

7. The parties, namely, the petitioners and respondent No.2 have meanwhile amicably settled the dispute and a formal Deed of Compromise has been executed on 08.08.2011 at Hisar (Annexure P2), some of the salient features whereof are to the following effect:-

“1. That now the first party has no objection if the above said case is put to an end by way of the quashment of above sentence and acquitting the second party. The first party will be under legal obligation to make statement in favour of the second party.

2. That the first party shall not pursue the said case against the second party in any circumstances whatsoever.

3. xxx xxx xxx

4. That the first party shall be under obligation to make statement in the court in favour of the second party and it will be also the responsibility of the first party that this willingness in the said case shall also depose in favour of the second party, in case of need as the matter has been compromised.

5. xxx xxx xxx

6. That both first party and second party have settled the matter in all respects.

7. That both first party and second party are all living under one roof being mother and sons.”

8. On the basis of compromise dated 08.08.2011 that the petitioners seek to invoke inherent powers of this Court under Section 482 CrPC for issuance of a direction to the learned Appellate Court where the criminal appeal preferred by them against the judgement and order dated 16.03.2009 is pending, to ‘compound’ the offences and acquit them of the charges leveled in the criminal complaint instituted by respondent No.2.

9. When this petition came up for preliminary hearing on December 16, 2011, a learned Single Judge referred it to larger Bench after noticing as follows:-

“Learned counsel for the petitioners has placed reliance on the judgment of learned Single Judge (Hon'ble Ms. Nirmaljit Kaur, J.) of this Court in Crl. Misc. No. M-5737 of 2011 titled “Chander Shekher and others Vs. State of Haryana and another” decided on 23.2.2011 (Annexure P-3) to say that power of this Court under Section 482 Cr.P.C. is not controlled by provision of Section 320 Cr.P.C. and in appropriate cases this Court can direct quashing of the criminal proceedings pursuant to compromise even if offences are not compoundable in nature. Criminal proceedings were directed to be quashed during the pendency of appeal against the conviction order passed by the trial Magistrate.

In the case of Rajinder Arora alias Raju Vs. State of Punjab and another, 2011(1) RCR(Criminal) 462 another learned Single Judge of this Court (Hon'ble Mehinder Singh Sullar, J.), while placing reliance on the judgment of this Court in the case of Lt. Col. Gian Singh Vs. State of Punjab and Nirmal Singh, CRM No. M-27367 of 2010 decided on 17.9.2010 in paragraph No.16 has observed as under: -

“16. Meaning thereby, once the petitioner has already availed the statutory remedy of appeal for setting aside the judgment of conviction, in that eventuality, the petition under section 482 Cr.PC filed by him for quashing the criminal prosecution, cannot legally be maintained. Thus, the contrary arguments of the learned counsel for the petitioner “stricto sensu” deserve to be and are hereby repelled as the observations of Hon'ble Apex Court in Arun Shankar's case and this Court in Lt.Col.Gian Singh and Raj Kumar's case (supra), are fully applicable to the facts of the present case and are the complete answer to the problem in hand.”

In the opinion of this Court, now there are conflicting views on the question as to whether petition under Section 482 Cr.P.C. is maintainable before this Court for quashing the criminal proceedings when accused were convicted by the trial Court and appeal against the conviction is pending before the appellate Court.

In a recent judgment Hon'ble Apex Court in the case of Sushil Suri Vs. Central Bureau of Investigation and another, (2011) 5 Supreme Court Cases 708, in paragraph No.34 has observed that jurisdiction of Apex Court under Article 142 of the Constitution of India or jurisdiction of the High Court under Section 482 Cr.P.C. should not be invoked to direct quashing of a case involving crime against the society.

Learned counsel for the petitioners has vehemently argued that Five Judges' Bench of this Court in the case of Kulwinder Singh and others Vs State of Punjab and another, 2007(3) RCR(Criminal) 1052 has laid down that in an appropriate case this Court can exercise jurisdiction to quash the criminal proceedings on the basis of compromise.

In the opinion of this Court, matter requires consideration by the Larger Bench of this Court as to whether criminal proceedings can be quashed by this Court under Section 482 Cr.P.C. when accused was found guilty and has been convicted by the trial Court and appeal therefrom is pending before Sessions Judge.”

10. From the above-reproduced reference order, the following two questions arise for determination by the larger Bench:-

(1) Whether the power exercisable by the High Court under Section 482 CrPC is controlled by Section 320 CrPC or it can be invoked in an appropriate case even if the offences are not compoundable in nature?

(2) Whether criminal proceedings can be quashed by the High Court in exercise of its power under Section 482 CrPC even after the accused was found guilty and convicted by the trial court though the matter is sub judice before the appellate court?

Question No.1

11. The extent and sweep of inherent power exercisable by the High Court under Section 482 CrPC for quashing the criminal proceedings on the basis of compromise between the offender and the victim of crime in a case which is not compoundable under Section 320 CrPC, has since been considered in extenso and answered by the Hon’ble Supreme Court in Gian Singh vs. State of Punjab & Anr., (2012) 4 RCR (Crl.) 543 = Law Today Live Doc. Id. 12249 = 2012 L.A.R. (e-Suppl.) 1, laying down that the compounding of offence and quashing of criminal proceedings are two separate things and not interchangeable and that the two powers are distinct and different although ultimate consequence may be the same. It has been authoritatively ruled that where the offender and victim have settled their dispute, the High Court in exercise of its inherent power under Section 482 CrPC, is competent to quash criminal proceedings even relating to the non-compoundable offences though such a power need to be invoked sparingly and not when the offences are heinous, serious, of mental depravity or like murder, rape, dacoity etc. The pronouncement thus says:-

“52. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.

53. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

54. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crimedoer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.”

12. The decision in Gian Singh’s case (supra) also approves the view taken by a five-Judge Bench of this Court in Kulwinder Singh & Ors. vs. State of Punjab & Anr., 2007(3) RCR (Crl.) 1052 = Law Today Live Doc. Id. 15176.

13. It is indeed now unarguable to say that the power exercisable by the High Court under Section 482 CrPC for the quashing of criminal prosecution is limited or affected by the provision of Section 320 CrPC.

14. We may, however, hasten to add that power of the Court under Section 320 CrPC to ‘compound’ an offence on the basis of compromise between the accused and the victim can be invoked only if the subject offence is compoundable. In other words, power under Section 320 CrPC is not exercisable in relation to a case of non-compoundable offence as ruled by the Hon’ble Supreme Court in a string of decisions including (i) Surendra Nath Mohanty vs. State of Orissa, (1995) 5 SCC 238; (ii) Bankat vs. State of Maharashtra, (2005) 1 SCC 343; and (iii) Gulab Das & Ors. vs. State of MP, (2011) 10 SCC 765.

15. The refusal to invoke power under Section 320 CrPC, however, does not debar the High Court from resorting to its inherent power under Section 482 CrPC and pass an appropriate order so as to secure the ends of justice.

Question No.2

16. As regards the doubt expressed by the learned Single Judge whether the inherent power under Section 482 CrPC to quash the criminal proceedings on the basis of compromise entered into between the parties can be invoked even if the accused has been held guilty and convicted by the trial Court, we find that in Dr.Arvind Barsaul etc. vs. State of Madhya Pradesh & Anr., (2008) 5 SCC 794, the unfortunate matrimonial dispute was settled after the appellant (husband) had been convicted under Section 498-A IPC and sentenced to 18 months’ imprisonment and his appeal was pending before the first appellate court. The Apex Court quashed the criminal proceedings keeping in view the peculiar facts and circumstances of the case and in the interest of justice observing that “continuation of criminal proceedings would be an abuse of the process of law” and also by invoking its power under Article 142 of the Constitution. Since the High Court does not possess any power akin to the one under Article 142 of the Constitution, the cited decision cannot be construed to have vested the High Court with such like unparallel power.

17. The magnitude of inherent jurisdiction exercisable by the High Court under Section 482 CrPC with a view to prevent the abuse of law or to secure the ends of justice, however, is wide enough to include its power to quash the proceedings in relation to not only the non-compoundable offences notwithstanding the bar under Section 320 CrPC but such a power, in our considered view, is exercisable at any stage save that there is no express bar and invoking of such power is fully justified on facts and circumstances of the case.

18. Since the petitioners have relied upon the compromise deed dated 08.08.2011, we thought it appropriate to ascertain firstly the genuineness of the settlement and consequently passed the following order on 08.08.2012:-

“Before we delve upon the issued involved, especially in the light of the reference order dated 16.12.2011, it appears expedient that the genuineness and validity of the compromise dated 08.08.2011 (Annexure P-2) must be established. Consequently, we direct the learned Additional Sessions Judge, Fast Track Court, Hisar to enable the petitioner; witnesses of the compromise deed and the complainant-mother to appear and depose in support of the compromise deed. The Additional Sessions Judge shall thereafter send a report to this Court which shall enlighten the living conditions of the complainant and the manner in which she is being looked after by her family members. The report shall be sent as early as possible but before the next date of hearing.”

19. In compliance thereto, the parties appeared before the learned Additional Sessions Judge at Hisar who, after examining the relevant record and the witnesses, has sent the following report dated 06.09.2012 to this Court:-

“Smt. Reshma Devi widow of Rajmal, resident of Jhanjanwala, District Jind deposed before this Court that she had filed a complaint against Rameshwar, Sube Singh and others about cheating committed with her regarding her land. In said criminal complaint, Sube Singh etc. were convicted and they had filed an appeal in the Court. She further deposed that on 08.08.2011 with the intervention of members of Panchayat, a compromise had entered between her, Sube Singh and Rameshwar, which was reduced into writing which is marked as X-1. She stated that she has heard the contents of compromise dated 8.8.2011 mark X-1 it is the same compromise, which was got affected by Panchayat between her and her two sons Sube Singh and Rameshwar and in presence of daughter Kamlesh, Ved Parkash her son-in-law, Kuldeep Sarpanch, village Jhanjanwala, Sunita, the member Panchayat Jhanjanwala and all the parties to the compromise had put their respective thumb impressions and signatures after understanding. She also deposed that as per the compromise she has agreed that she had no objection, if the case/appeal preferred by Sube Singh and Rameshwar is put to an end and the same is set aside and they are acquitted. She also testified that she had agreed to give statement or execute affidavit in favour of Sube Singh and Rameshwar in the Court and would also cooperate with Sube Singh and others in putting an end to the dispute with them and settled all the matters in said respect. She also stated that she is residing together with her sons Sube and Rameshwar under the same roof and she stated that her sons Sube Singh and Rameshwar are keeping her well and looking after her. She also testified that she has made the statement in the court voluntarily and with full understanding.

Smt. Kamlesh wife of Ved Parkash (daughter of Reshma) and Ved Parkash son of Har Narain, (son in law of Smt. Reshma), Kuldeep Sarpanch, village Jhanjanwala, Sunita, Member Panchayat village Jhanjanwala District Jind in their separate statements deposed that regarding the criminal complaint instituted by Smt. Reshma Devi which led to the conviction of Sube Singh and Rameshwar and their filing appeal in the court, a compromise dated 8.8.201 mark X-1 was reduced into writing and as per the compromise the parties to the same had agreed that Smt. Reshma Devi would have no objection, if the conviction of Sube Singh and Rameshwar is set aside and they are acquitted and it was also agreed that Reshma would give the statement in the court in said regard. They also deposed that Sube Singh and Rameshwar are keeping Smt. Resha well and are serving her. They accepted the compromise mark X-1 as correct as entered into between the parties.

Rameshwar and Sube Singh, the appellants also suffered a separate statement that a compromise dated 8.8.2011 mark X-1 has been entered between the parties with the assistance of Panchayat members and their sister and brother-in-law. They stated that their mother Smt. Reshma is living with them and they are serving her. Shri Pawan Kumar, Advocate identified Smt. Reshma, Kamlesh wife of Ved Parkash, Ved Parkash son of Har Narain, Kuldeep, Sarpanch village Jhanjanwala and Sunita, Member Panchayat village Jhanjanwala and Shri MR Mehta, Advocate identified the appellants Sube Singh and Rameshwar.

From the statements of the parties discussed above and compromise dated 08.08.2011 mark X-1, it is made out that the parties have arrived at aforesaid compromise willingly. The compromise dated 8.8.2011 mark X-1 appears genuine and valid document executed by the parties as per their statements recorded above.”

20. It has thus been ascertained to our satisfaction and stands established that the compromise arrived at between the parties is genuine, willful and bona fide. It is also proved that the petitioners and respondent No.2 are living under the same roof. In fact to remove any sort of doubts regarding the genuineness of the compromise, respondent No.2 appeared before us along with her daughter and made a statement on oath on 03.04.2013 in support of the compromise. She also stated that the parties are living under the one roof and she is being well looked after by her sons, namely, the petitioners.

21. In the light of these peculiar facts and circumstances where not only the parties but their close relatives (including daughter and son-in-law of respondent No.2) have also supported the amicable settlement, we are of the considered view that the negation of the compromise would disharmonize the relationship and cause a permanent rift amongst the family members who are living together as a joint family. Non-acceptance of the compromise would also lead to denial of complete justice which is the very essence of our justice delivery system. Since there is no statutory embargo against invoking of power under Section 482 CrPC after conviction of an accused by the trial Court and during pendency of appeal against such conviction, it appears to be a fit case to invoke the inherent jurisdiction and strike down the proceedings subject to certain safeguards.

22. Consequently and for the reasons afore-stated, we allow this petition and set aside the judgement and order dated 16.03.2009 passed in Criminal Case No.425-1 of 2000 of Additional Chief Judicial Magistrate, Hisar, on the basis of compromise dated 08.08.2011 arrived at between them and their step-mother – respondent No.2 (Smt. Reshma Devi) w/o late Rajmal qua the petitioners only. As a necessary corollary, the criminal complaint filed by respondent No.2 is dismissed qua the petitioners on the basis of above-stated compromise. Resultantly, the appeal preferred by the petitioners against the above-mentioned order dated 16.03.2009 would be rendered infrucutuous and shall be so declared by the first Appellate Court at Hisar.

23. We are, however, not oblivious of the fact that after the change in the circumstances on the quashing of criminal proceedings also, the sanctity of compromise arrived at between the parties must be maintained and it must be ensured that respondent No.2 is not neglected in any manner and is allowed to lead a dignified life. The fact that respondent No.2 is an illiterate old woman and the help and assistance of her daughter and son-in-law may not be available to her all the times, we make it clear that the above-stated directions and declarations are subject to the following conditions and further directions:-

i.     Respondent No.2 shall continue to be the owner-in-possession of the agricultural land transferred in her favour by her deceased husband (Rajmal) and the petitioners shall make no attempt, directly or indirectly, to transfer, sell or take possession of that land;

ii.     The petitioners shall not obtain any loan etc. nor shall mortgage, hypothecate or encumbrate upon the land of respondent No.2, in any manner, whatsoever;

iii.    The Deputy Commissioner-cum-Collector, Jind, the Sub- Divisional Officer (Civil), Narwana, and the Tehsildar within whose jurisdiction the land falls, are directed to make necessary entries in the revenue record consistent with the directions (i) & (ii) above;

iv.    If respondent No.2, at her own, wants to transfer the land in any manner, still the revenue authorities shall not entertain any transfer deed without first reporting the matter to the District & Sessions Judge, Jind who shall then ascertain the genuineness of the proposed transaction through the aegis of the District Legal Services Authority and no deed shall be executed unless it is certified that respondent No.2 has decided to enter into the proposed transaction at her free-will and the transaction is ex facie in her own interest;

v.    The petitioners shall be obligated to look after and take care of respondent No.2 in the same manner as they have promised in terms of the compromise and any complaint of maltreatment, neglect or misbehaviour, if made by respondent No.2 to the police authorities, shall be taken cognizance of within 24 hours and appropriate action shall be taken with prior intimation to the District & Sessions Judge, Jind.

vi.    Respondent No.2 shall always be at liberty to approach this Court and seek recall of this order, if there is any breach of the compromise by the petitioner(s) or of the directions given hereinabove.

24. A copy of this order be sent to the learned District & Sessions Judge, Jind as well as Mr. RD Sharma, DAG Haryana for onward transmission to (i) the Deputy Commissioner-cum-Collector, Jind; (ii) the Sub-Divisional Officer (Civil), Narwana; and (iii) the Tehsildar, concerned for information and necessary compliance.

25. We appreciate the assistance rendered by the learned amicus curiae and the State counsel in the matter.

26. The amicus curiae shall be paid his fee by the High Court Legal Services Committee.

Order accordingly.

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