Bajrang Ghanshyam Gupta v. State Of Mah. Thr. Tah. Ps, Nagpur.

2024:BHC-NAG:6715 1/24

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APL) NO. 308 OF 2024 1) Bajrang S/O Ghanshyam Gupta, Aged about 38 yrs, Occ: Business, 2) Ghanshyam s/o Mannulal Gupta, Aged about 71 yrs, Occ: Business, 1 & 2 R/o : Lohaoli, Itwari, Besides Jagdamba Hardware, Nagpur.

3) Omprakash s/o Mannulal Gupta, Aged about 60 yrs, Occ: Business, R/o Chunaoli, Itwari, Nagpur 4) Sudarshan s/o Rammanohar Gupta, Aged about 43 yrs, Occ: Business, R/o 192, Tulsi Nagar, Shanti Nagar, Nagpur.

.... Applicant(s) // VERSUS // 1) State of Maharashtra Through Police Inspector, Police Station Tehsil, Nagpur.

2) Rajesh s/o Chhotelal Gupta, Aged about 52 yrs., Occ: Business, R/o Hansapuri, Bhandara Road, Nagpur.

.... Non-applicant(s) Mr. J.M. Gandhi, Advocate for the Applicants Mr. D.V. Chouhan, G.P. a/w Ms Trupti Udeshi, APP for the non-applicant No.1/State

2/24 WITH CRIMINAL APPLICATION (APL) NO. 456 OF 2024 1) Chetan Kailas Vaidya Aged about 27 yrs, Occ: Labour, R/o Shivar, Bhandari, Tq. Ghatanji, Dist. Yavatmal.

.... Applicant(s) // VERSUS // 1) The State of Maharashtra Through P.S.O. of P.S. Ghatanji, Tah. Ghatanji, Dist. Yavatmal.

2) xxxxx victim Aged 23 yrs Occ. Housewife Complainant in Crime No.06/2019 registered at Police Station Ghatanji, Tah. Ghatanji, Dist. Yavatmal.

.... Non-applicant(s) Ms Sapna Jadhav, Advocate for the Applicant Mr.M.K. Pathan, APP for the non-applicant No.1/State Ms Astha Sharma, Advocate for non-applicant No.2 WITH CRIMINAL APPLICATION (APL) NO. 763 OF 2024 1) Shri Bhaskar Patruji Chalakh, Aged about 46 years, Occ. Labour, R/o. Kharpundi, Post. Amirza, Tah and Dist. Gadchiroli.

.... Applicant(s) // VERSUS //

3/24 1) State of Maharashtra Through P.S.O. Police Station, Dist.

Gadchiroli.

2) Rekha Sukhdev Dhobade, Age 50 years, Occu. Labour, R/o Kharpundi, Post. Amirza, Tah & Dist.

Gadchiroli .... Non-applicant(s) Mr. Y.B. Mandpe, Advocate for the Applicant Mr. D.V. Chouhan, G.P. for the non-applicant/State

CORAM

: SMT. VIBHA KANKANWADI & MRS. VRUSHALI V. JOSHI, JJ.

CRIMINAL APPLICATION NO.308 OF 2024 DATE OF RESERVING THE JUDGMENT : 11th JUNE, 2024 DATE OF PRONOUNCING THE JUDGMENT : 20th JUNE, 2024 CRIMINAL APPLICATION NOS.456 AND 763 OF 2024 DATE OF RESERVING THE JUDGMENT : 14th JUNE, 2024 DATE OF PRONOUNCING THE JUDGMENT : 20th JUNE, 2024 COMMON JUDGMENT : (PER : SMT. VIBHA KANKANWADI, J ) 1.

Heard.

2.

ADMIT.

3.

Heard finally with the consent of the learned Advocates for the rival parties.

4/24 4.

All the applications have been filed under Section 482 of the Code of Criminal Procedure(Cr.P.C.) for quashing the judgments of conviction of the respective applicants and for acquitting them of the charges. In view of the common subject involved in the matter, all these matters are taken up together.

5.

Heard the learned Advocates for the applicants, learned Public Prosecutor, learned APP and the learned Advocates for the respective informants. Perused the record.

6.

Mr. Gandhi, learned Advocate, appearing for the applicants in Criminal Application 308 of 2024 vehemently submits that the fact of the case would disclose that the applicants and the nonapplicant No.2/informant are relatives and the dispute arose in respect of the property. The incident occurred in the fit of anger. It is alleged that the applicant No.1 had given two blows on the informant, however, they were not on the vital part. He has been convicted for the said offence for the period of four years. Whereas, the other applicants have been sentenced to suffer rigorous imprisonment for one year which they have already

5/24 undergone. The appeal is pending, however, now the settlement has been arrived at, which has given rise to the present case. 7.

Mr. Gandhi, learned Advocate for the applicants, relies on the decision in the case of Ramgopal Vs. State of M.P., reported in 2022 (1) Mh.L.J. (Cri.) (S.C.) 291, wherein it has been observed that having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, High Court can quash such proceedings in exercise of its inherent powers under section 482 of the Criminal Procedure Code, even if the offences are non-compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter, adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.

8.

He further relies on the decision of this Court in the Ahfaz Ahmad Vs. State of Mah., reported in 2020(1) Mh.L.J.(Cri.) 237,

6/24 wherein also the application came to be allowed when the incident occurred due to property dispute.

9.

Mr. Mandpe, learned Advocate appearing for the applicant in Criminal Application 763 of 2024, submits that by way of recent development, the applicant has challenged the decision against him in the revision before this Court but that has been filed (though within a limitation) after the present application came to be filed. In this case, the conviction was awarded by the learned Judicial Magistrate First Class (JMFC) in Regular Criminal Case No. 113 of 2019 for the offence punishable under Section 324 and he was directed to undergone rigorous imprisonment for one year and to pay fine and the said conviction was confirmed by the learned First Appellate Court. He submits that taking into consideration the dispute was between the brother and the sister and it was alleged that the assault was under the influence of liquor by the applicant, now the sister and brother want to maintain their relations and therefore, settlement has been arrived at. He also relies on the

7/24 judgment of the Hon'ble Supreme Court of India in the case of Ramgopal (supra).

10.

Ms Jadhav, appearing for the applicant in Criminal Application No.456 of 2024, submits that there was a consensual sexual relations between the applicant and the victim. Due to certain circumstances, the applicant could not marry with the victim/non-applicant No.2. Though the offences under the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act"), were invoked and the conviction is also awarded, the learned Trial Judge has failed to appreciate the point that the prosecution failed to prove that the non-applicant No.2 was 'child' as defined under the POCSO Act.

11.

The applicant/original accused therein was aged 22 years and the victim was aged 17 years. It was a love in their teen age. The victim became pregnant, then instead of asking the applicant for marriage, her family members performed her marriage with somebody else at the time of trial. She relied on the observations of this Court (Single Bench) in the case of Santosh Mukund Ghotekar

8/24 Vs. State of Maharashtra, reported in DLD (Cri)-2022-1127 and Ashik R. Ansari Vs. State of Maharashtra, reported in 2023 (3) Bom.C.R. (Cri.) 322, wherein in both the cases though the victim was child, it was taken that they had attended the age of understanding and consequence of their act. Therefore, the conviction was set aside holding that there was consensual sexual act between the accused and the victim. She also relies on the orders passed by this Court in Criminal Applications, invoking the inherent powers of this Court under Section 482 of the Cr.P.C. in the offence under Section 377 of the Indian Penal Code (IPC) and in another matter under Section 354 and 364-A of the IPC and Sections 7 and 8 of the POCSO Act. According to her, when the dispute is now settled, the applicant need not to be kept behind bar and the conviction, therefore, deserves to be set aside. 12.

Mr. Gandhi, learned Advocate has also relied on the judgment of the Hon'ble Supreme Court in the case of Abdul Ansar Vs. State of Kerala, reported in (2023) 8 SCC 175 as well as

9/24 Mahesh Chand Vs. State of Rajasthan reported in AIR 1988 SC 2111.

13.

Per contra, the learned PP vehemently opposed the applications and submits that if such compromises are allowed to be considered after the conviction, then it will give a wrong message to the society. He submits that though this Court has power to consider the settlement post conviction also yet the principles have been summerised by the Hon'ble Supreme Court of India as to when the quashment of the proceeding in not compoundable offence, can be made as compared to the powers of the Appellate Court under Section 320 of Cr.P.C. He points out that the decision in Ramawatar Vs. State of M.P. reported in (2022) 13 SCC 635 wherein Ramgopal (supra) was also considered in this case and it was observed that "we, however, put the further caveat that the powers under Article 142 or under Section 482 of the Cr.P.C. are exercisible in post conviction matters only on the premise that an order of conviction does not attend finality till the accused has exhausted his/her legal remedies and the finality is subjudiced

10/24 before an Appellate Court". The pendency of legal proceedings, be that may before the final Court, is sine qua non to involve the superior Court's plenary powers to do complete justice. 14.

He further relies on the Full Bench decision of this Court in the case of Maya Vs. State of Mah., reported in 2021(1) Mh.L.J. 613, wherein the following questions were framed, which are as under:

"(A) In a prosecution which has culminated in a conviction, whether the power u/s 482, Criminal Procedure Code ought to be exercised for quashing the prosecution/conviction altogether, (instead of maintaining it and considering the issue of modification of the sentence) upon a settlement between the convict and the victim/complainant ?

(B) Whether the broader principles/parameters as set out in Gian Singh vs State of Punjab and another 2013 (1) Mh.L.J. (Cri) (S.C.) 417 = (2012) 10 SCC 303, Narinder Singh vs. State of Punjab 2014 (4) Mh.L.J. (Cri.) (S.C.) 241 = (2014) 6 SCC 466 and Parbatbhai Aahir and others vs. State of Gujrat 2018 (2) Mh.L.J. (Cri.) (S.C.) 1= (2017) 9 SCC 641 have been correctly applied in deciding Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanjal ?"

15.

The answer has been given after much discussion and taking into consideration the previous decisions of this Court as well as the Hon'ble Apex Court, which reads thus:

11/24 "33. At the conclusion of the criminal trial the Court on finding the evidence on record led by the prosecution to be sufficient to prove the guilt of the accused would proceed to convict the accused. The remedy of challenging the order of conviction is available to the accused by way of an appeal. Any compromise entered into post-conviction for a noncompoundable offence cannot by itself result in acquittal of the accused. Similarly, the Court has no power to compound any offence that is non-compoundable and not permitted to be compounded under section 320 of the Code. The compromise entered into therefore is just a mitigating factor that can be taken into account while hearing the appeal/revision challenging the conviction and which factor has to be taken into consideration while imposing appropriate punishment/sentence.

It is not permissible to set aside the judgment of conviction at the appellate/revisional stage only on the ground that the parties have entered into a compromise. In a given case the appellate Court/revisional Court also has the option of not accepting the compromise. Thus if the judgment of conviction cannot be set aside in an appeal/revision only on the ground that the parties have entered into a compromise similar result cannot be obtained in a proceeding under section 482 of the Code.

Hence, we hold that ordinarily the contention that the convict and the informant/complainant have entered into a compromise after the judgment of conviction can be raised only before the appellate/revisional Court in proceedings challenging such conviction. It would be a sound exercise of discretion under section 482 of the Code and in accordance with the law of the land to refuse to quash criminal proceedings postconviction for a non-compoundable offence only on the ground that the parties have entered into a compromise. Instead the Court can permit the convicted party to bring to the notice of the appellate/revisional Court the aspect of compromise. Having said so, it is only in rarest of rare cases that the Court may quash the criminal proceedings post- conviction for a noncompoundable offence on settlement between the convict and the informant/complainant. ..."

12/24 16.

He therefore, submit that the facts of the each case are required to be considered. He then points out that the facts in Criminal Application No.308 of 2024 would show that it was a property dispute but the offence that was proved was under Section 307 read with Section 34 of the IPC, which is one of the serious offences. He further submit that in Ramgopal (supra) as well as in Ramawatar (supra), the Hon'ble Apex Court has deprecated the settlement in rape cases. The legislature, while enacting the POCSO Act, made it stringent taking into consideration that the said enactment deals with the offences which are committed against the child. In the present application under section 482 of the Cr.P.C., this Court cannot go to assess as to whether the nonapplicant No.2 in Criminal Application No.

456 of 2024 was a child or not or whether that act was proved before the Trial Court or not and therefore, opposes for recording the compromise and setting aside the conviction.

13/24 on the applicant as the entire machinery/prosecution had taken part in proving the offence.

17.

We would like to deal with the legal point first. Taking into consideration the decisions in Ramgopal (supra), Ramawatar (supra), Full Bench judgment of this Court in Maya (supra), the point is not res-integra. In Ramgopal (supra), the decision in Gian Singh vs. State of Punjab reported in 2013 (1) Mh. L.J. (Cri.)(S.C.) 417 was considered, so also another 3-Judge Bench decision of the Hon'ble Apex Court in State of Madhya Pradesh Vs. Laxmi Narayan and ors. reported in 2019 (5) Mh. L.J. (Cri.)(S.C.) 247 was also considered. For our purposes, paragraph 19 of Ramgopal (supra) would be important, which is as under: "19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C.

where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C.

14/24 the injury, if any; (iii) voluntary nature of compromise between the accused and the victim; & (iv) conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations." 18.

This paragraph was referred in the Ramawatar (supra) and the decision in Ramgopal (supra) was affirmed and reiterated. However, though was in respect of the powers of the Hon'ble Apex Court under Article 142 of the Constitution of India, but that equally is in respect of Section 482 of the Cr.P.C. It was held that such powers can be exercised when a judgment of the conviction has not attained finality. In other words, the said powers can be exercised only in respect of the pending appeal or revision. Now, as regards Criminal Application No.308 of 2024, Criminal Application No.456 of 2024, respective appeals were filed and pending. When the application was made only in respect of the Criminal Application 763 of 2024, it appears that the revision has been filed after the application was filed but as on today i.e. when this judgment is delivered, the revision is before this Court. 19.

In Ramgopal (supra) as well as Ramawatar (supra), the Hon'ble Supreme Court was of the view that when the dispute is

15/24 settled, then it should be seen by the Court that the complete justice is done in order to maintain peace and relation between the parties if they arrived at a compromise at the latter point of time, within the parameters laid down, such powers under section 482 can be exercised. The Full Bench of this Court in Maya (supra) was called upon to decide the issue regarding the scope of Section 482 of the Cr.P.C. in setting aside the conviction due to compromise between the parties. Various decisions have been considered by this Court as well as the Hon'ble Apex Court, which include the decisions referred above and thereupon, the question 'A' has been answered as above. We may repeat that the Full Bench of this Court held that while exercising inherent powers under Section 482 of the Cr.P.C.

for quashing a criminal proceedings, the decision of this court in Kiran Tulshiram Vs. Anupama, reported in 2006(2) Mh.L.J. (Cri.) 402, can be exercised in a limited way. The expression "Criminal Proceedings" would cover the entire journey of the proceedings commencing from its initiation till the proceedings culminate giving it seal of finality.

16/24 in all these three cases, but it is definitely subject to parameters laid down by the Hon'ble Apex Court in Ramgopal (supra) and in Maya (supra) by the Full Bench of this Court. By observing this, we will proceed to consider the facts of each case. It is with a view to see whether the parties in respective cases can be allowed to compound the offence or not.

Criminal Application No.308 of 2024 20.

The facts of the present case would disclose that in all four accused persons faced the trial for the offence under Section 307 read with Section 34 of the IPC and Section 4 punishable under Section 35 of the Arms Act and under Section 135 of the Maharashtra Police Act.

21.

The Additional Sessions Judge, Nagpur by judgment dated 25/07/2023, acquitted the accused No.1 of the offences punishable under Sections of the Arms Act and the Maharashtra Police Act. However, all the accused persons have been convicted of the offence punishable under Section 307 read with Section 34 of the IPC. It appears that while imposing punishment, the act alleged to

17/24 have been committed by each accused persons, has been considered while imposing penalty/sentence. The accused No.1 has been sentenced to suffer rigorous imprisonment four years and fine of Rs.10,000/- whereas, the other accused persons have been sentenced to suffer rigorous imprisonment for one year and to pay fine.

22.

We need not go in to much details as to whether the learned Trial Court was justified in bifurcating the things while awarding punishment when he was invoking Section 34 of the IPC. But taking into consideration the facts of the case, it is certain that it was a dispute between the family on account of a landed property. The non-applicant No.2 and the applicants are relatives and the compromise has been executed on the stamp paper and it has been read and recorded by this Court also in a sense that a wish of the non-applicant No.2 has been heard. The background has been stated in the agreement of settlement and assurance is also given for maintaining good relationship. Therefore, we find this is a fit case where we can exercise our powers under Section 482 of Cr.P.C.

18/24 Criminal Application No.763 of 2024 23.

Here the dispute was between the sister i.e. non-applicant No.2 and brother, the original accused. It is stated in the FIR as well as it is case of the prosecution that when the dispute took place the applicant/the original accused was under the influence of liquor. The assault is with Bamboo stick and the injury appears to have been caused over vertex region. As it has been held that the offence under Section 324 was proved, it will have to be taken that the said injury was a simple injury. The only question, at the time on the date of this application was filed, there were no proceedings pending before this Court. However, in view of the recent development, when the revision is filed that too within limitation, it will have to be seen that the date on which this Court would decide to exercise its powers under Section 482 of the Cr. P.C. The said revision is before this Court, so we do not find any hurdle in this case also and the facts prompt us to exercise our inherent powers under Section 482 of Cr.P.C.

Criminal Application No.456 of 2024

19/24 24.

As aforesaid offence for which the accused stood prosecuted was under Sections 506 and 376(2)(f)(n) of the IPC and Section 4 and 10 of the POCSO Act.

25.

The applicant/Accused was acquitted for the offence punishable under Section 506 of the IPC, however, convicted for the offence punishable under Section 376(2)(f)(n) of the IPC and has been sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/- in default to suffer simple imprisonment for six months. No separate sentence was awarded for the conviction of offence under section 4 and 10 of the POCSO Act. That means the said offence under the POCSO Act has been proved against the accused. We cannot go into the details as to whether the prosecution had proved that the non-applicant was 'child' under the definition of POCSO Act or not, as the appeal is still pending. The reliance on the observations in the case of Ashik Ansari (supra) and Santosh Ghotekar (Supra) as well as the other orders passed by this Court, wherein compounding was permitted, will not help the applicant/original accused, as the parameters while

20/24 deciding the appeal are different and taking into consideration the fact of the present case, it appears that this Court had allowed for compounding the offence punishable under Section 376 of the IPC in one case and Section 354 and 364-A of the IPC as well as the POCSO Act, in another.

26.

In all the above cases decided by the Hon'ble Supreme court, it has been reiterated that the powers under Section 482 of the Cr.P.C. can be exercised under which in rarest of rare case. As regards a relief of quashing the proceedings post conviction, we would like to reproduce paragraph Nos.13 and 14 of the case of Ramgopal (supra). It guides us when we should consider the point of extra ordinary powers under Section 482 of the Cr.P.C. "13. It appears to us that criminal proceedings involving nonheinous offences or where the offences are pre-dominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice.

Societal method of applying laws evenly is always subject to lawful exceptions.

21/24 of the offence, besides the conduct of the accused, before and after the incidence. The touchstone for exercising the extraordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may rather lead to grave injustice. On the other hand, in cases wherein heinous offences have been proved against perpetrators, no such benefit ought to be extended, as cautiously observed by this Court in Narinder Singh & Ors. vs. State of Punjab and others (2014) 6 SCC 466 and Laxmi Narayan (supra).

14. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community but may also accord an undue benefit to unscrupulous habitual or professional offenders, who can secure 'settlement' through duress, threats, social boycotts, bribes or other dubious means. It is well said that "let no guilty man escape, if it can be avoided."" 27.

The offence in the present case is heinous crime that too committed against the child. Whether it will be appropriate to consider the present case as the act of consensual sexual act, when we are dealing with the application in view of the fact that the appeal is still pending ? Therefore, we do not find this to be a fit case for exercising the powers under Section 482 of the Cr.P.C.

22/24 28.

Taking into consideration the fact that now the compromise has arrived at after conviction; prosecution had taken efforts in proving the guilt, we are of the opinion that the cost is required to be imposed on the applicant while permitting the compounding of the offence.

29.

Taking into consideration of the above observations and individually also dealing with the matters, we proceed to pass the following orders:

(i) Criminal Application No.308 of 2024 and Criminal Application No.763 of 2024 stand allowed.

(ii) Criminal Application No.456 of 2024 stands dismissed.

(iii) The applicant Nos.1 to 4 and the non-applicant No.2 in Criminal Application No.308 of 2024 are allowed to compound the offence. Consequently, we quash the conviction of the applicant in Sessions Trial Case No.309 of 2017 decided by the learned Additional Sessions Judge, Nagpur on 25/07/2023. Consequently, the Criminal Appeal

23/24 No.554 of 2023 and 591 of 2023, pending before this Court stand disposed of.

(iv) The applicant No.1-Bajrang s/o Ghanshyam Gupta, is directed to be released from the Central Prison, Nagpur. (v) The applicants to deposit cost of Rs.50,000/- with this Court within a period of two weeks. Upon depositing the said amount, the amount of Rs.25,000/- be given to the nonapplicant No.2. Rest of the amount of Rs. 25,000/- be transferred to the High Court Legal Services Sub-Committee, Nagpur.

(vi) The applicant and the non-applicant No.2 in Criminal Application No.763 of 2024 are allowed to compound the offence. Consequently, the conviction awarded by the learned JMFC, Gadchiroli in RCC No.113 of 2019 on 13/01/2020 and the conviction confirmed by the learned Sessions Judge, Gadchiroli in Criminal Appeal No. 5 of 2020 on 16/04/2024, is hereby quashed and set aside. (vii) The applicant-Bhaskar Patruji Chalakh be released, if not up till now.

24/24 (viii) Consequently, the Revision Application No.93 of 2024 stands disposed of.

(ix) The applicant to deposit cost of Rs.20,000/- with this Court within a period of two weeks. Upon depositing the said amount, the amount of Rs.10,000/- be given to the nonapplicant No.2. Rest of the amount of Rs. 10,000/- be transferred to the High Court Legal Services Sub-Committee, Nagpur.

(x) The applicants, in Criminal Application No.308 of 2024 and Criminal Application No.763 of 2024, to give undertaking(s) that they would maintain peace and good relationship. Such undertaking be given within a period of two weeks, in this Court.

(xi) Criminal Application No.308 of 2024 and Criminal Application No.763 of 2024, be kept on 04/07/2024 for compliance of the applicants.

[MRS. VRUSHALI V. JOSHI, J] [SMT. VIBHA KANKANWADI, J]