- (1.) Whether to quash a criminal proceeding on the ground of a compromise struck between the accused and the complainant/victim or not is the legal issue before this court. Some times, this court has quashed the proceedings on the ground of such compromise. Other times, this court and the Apex Court have refused to do so on the ground that the offense is non-compoundable under Section 320 of the Code of Criminal Procedure (henceforth to be referred to as the 'the Code', for short). While hearing the arguments in the above cases, the counsels for the petitioners relied on the case of Abdul Nadim & Anr. v. State of Rajasthan & Ors.,2001 1 RajCriC 387, and on Banwari & Ors. v. State of Rajasthan, 2002 2 RajCriC 754 to buttress their contention that even in the case of offense falling under Section 308 or under Section 326 IPC, this court has quashed the trial on the ground of compromise between the parties. Similarly they have relied on the case of B.S. Joshi and Ors. v. State of Haryana and Anr., 2003 4 SCC 675 to show that even the Apex Court had quashed the criminal proceeding for offence under Section 498A and 406 IPC, although the offenses were non-compoundable under Section 320 of the Code. On the other hand, the learned Public Prosecutor has relied on the case of Mohan Singh and Ors. v. State of Rajasthan, 1993 CrLJ 3193, a Full Bench decision of this Court and on the case of Bankat and Anr. v. State of Maharashtra, 2005 1 SCC 343 to argue that a case cannot be compounded when the offense is not covered under Section 320 of the Code. Since the contentions were equally weighty, since the case law was equally divided, it was felt necessary to invite the learned members of the Bar to assist the court in deciding the following legal issues:- 1. While Section 320 of the Code permits "compounding of cases", many of the courts are quashing the criminal trials on the ground of compromise reached between the parties. What is the difference between the Compounding and the quashing of cases on the basis of compromise? 2. Can the power under Section 482 of the Code be invoked to quash a trial in those cases which are not covered by Section 320 of the Code? 3. What is the scope of this inherent power? 4. Can such a power be invoked despite the clear ban on the use of power to compound the case? 5. What guidelines should be laid down for the exercise of this power? Without first entering into the factual matrix of the individual cases, initially this court will deal with the respective contentions of the parties, it would then discuss the legal issues, and subsequently deal with the individual petitions.
(2.) Mr. S.R. Bajwa, Senior Advocate, has raised plethora of contentions before this court: firstly, a distinction has to be made between compromising of a case, compounding of a case and withdrawal of a case. Secondly, Section 320 of the Code bestows a limited power on the court to compound the offences enumerated therein. Section 482 of the Code, on the other hand, does not confer a new power, but merely saves the inherent power which the court possessed before the enactment of the Code. Thus, the power under Section 482 is vast, is unlimited, although a guided one. The section begins with a non-obstante clause. It unequivocally proclaims that "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court........." Hence, the bar contained in Section 320 of the Code does not hamper the power of the Court to quash a criminal proceeding on the ground of parties having compromised. Thirdly, the cardinal function of the court is to do substantial justice between the parties. In case the parties have compromised between themselves, the continuation of the trial would be a futile exercise. In fact, it would have two adverse consequences. Firstly, the witnesses would be motivated to change their stand before the trial court, they would turn hostile. Secondly, it would lead to a fruitless protracted trial, which would only end in acquittal of the accused. This would tantamount to abuse of the process of the court. Power under Section 482 of the Code is meant to curb the abuse the process of the court. Fourthly, a futile trial would waste the valuable time of the Court. An over-burdened judiciary would be forced to carry the weight of "dead cases". Instead of reducing the burden on the judiciary, the burden would continue. Such a course would be good neither for the concerned parties, nor for the legal system. Lastly, one of the aims of the legal system is to ensure peace and harmony in the society. By dragging a case, the animosity between the parties would continue. The endeavor should be to wrinkle out the differences, to defuse the tension between the parties. The sooner the trial ends, the sooner the parties can live in peace. In order to buttress his contentions, the learned counsel has relied on the case of Mrs. Shakuntala Sawhney v. Mrs. Kaushalya Sawhney and Ors., 1980 1 SCC 63, B.S. Joshi , and to the case of Popular Muthiah v. State, 2006 7 SCC 296.
(3.) Mr. Biri Singh Sinsinwar, also reiterated the crucial function of the court is to do justice to the parties. According to the learned counsel the ends of justice are higher than the ends of law. In order to buttress this contention, the learned counsel has relied upon the case of State of Karnataka v. L. Muniswamy and Ors., 1977 2 SCC 699. However, according to the learned counsel, the power under Section 482 of the Code is not a unbridled power. It, being a vast power, has to be used with care and caution. Thus, it should be exercised under certain circumstances. It must be controlled and channeled by certain guidelines.;