MANOJ SHARMA versus STATE & ORS.

5. A perusal of the FIR shows that the allegations against the appellant were that he forged documents in respect of a G vehicle and thereafter indulged in cheating and deposited the cheques received from the complainant against financing of the vehicle in different accounts. It is also alleged in the FIR that the appellant sold the vehicle of the complainant to some other party by making forged signature and by playing fraud with him. ,,.___

6. On the basis of the above FIR charges were framed ~— against the appellant and co-accused Man Mohan Sharma.

7. The appellant filed a writ petition before the High Court for quashing the FIR on the ground that the matter had been compromised between the complainant and the accused. In that writ petition an affidavit was filed by the complainant stating that in view of the settlement between the parties he is withdrawing 'r– the allegations against both the writ petitioners and he is also withdrawing the FIR. As per the amicable settlement a sum of Rs. 45,000/- would be paid to the appellant Manoj Sharma and c a further sum of Rs. 45,000/- would be paid to the co-accused Man Mohan Sharma.

8. However, the Delhi High Court by the impugned judgment dated 17.8.2007 rejected the writ petition and hence this appeal.

9. It may be mentioned that under Section 320(1) Cr.P.C. certain offences in the IPC can be compounded by the persons y mentioned in the 3rd column of the table in that provision. Also, r in view of Section 320(2) certain other offences can be com- pounded with the permission of the Court. However, Section E 320 (9) specifically states: "No offence shall be compounded except as provided by this Section".

10. A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120-B IPC (with are mentioned in the }-.._~ FIR in question) cannot even be compounded with the permis- sion of the Court. In fact, Section 320(9) Cr.P.C. expressly states that no offence shall be compounded except as provided by this Section. It apparently follows, therefore, that except for Sec- G tion 420 IPC, which can be compounded with the permission of the Court in view of Section 320(2), the other provisions men- tioned in the FIR in question could hot be compounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were not compoundable H except in relation to the allegations about Section 420 IPC. MANOJ SHARMA v. STATE & ORS. [MARKANDEY KAT JU, J.] r ——..

11. There are other provisions in the IPC e.g. Section 498A A which apparently cannot be compounded even with the perm is- sion of the Court in view of Section 320 (9) Cr.P.C.

12. However, this was creating a lot of difficulty and hard- ship to the public and hence a way out was found by this Court in B.S. Joshi and others vs. State of Haryana 2003.(4) SCC –i 675 [= JT 2003(3) SC 277 =AIR 2003 SC 1386]. In that deci- sion this Court referred to its own earlier decision in Madhu Limaye vs. State of Maharashtra 1977 (4) SCC 551 in which it was held (vide para 8) that the power under Section 482 should not be exercised when there is an express bar in some other c provision of the Code. The Court in B.S. Joshi's case (supra) also referred to the decision in Surendra Nath Mohanty vs. State of Orissa AIR 1999 SC 2181 which held that since the offence under Section 326 IPC is not compoundable the High Court cannot compound the offence. '"'(

13. Despite the above decisions this Court in B.S. Joshi's case (supra) relying on its own decision in State of Karanataka vs. L. Muniswamy 1977 (2) SCC 699 observed that the High Court under Section 482 Cr.P.C. can quash the criminal proceed- ings if it comes to the conclusion that the ends of justice so re- quires e.g. where there would almost be no chance of conviction. In a case under Section 498A IPC if the parties enter into a com- promise the chances of an ultimate conviction are bleak, and hence no useful purpose would be served by allowing the crimi- ~ . .,,.J nal proceedings to continue. They should, therefore, be quashed by exercising power under Section 482 Cr.P.C. The Court also relied on the decisions in Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre 1988 1 SCC 692, G V Rao vs. L. H. V Prasad (2000) 3 SCC 693 for taking the same view.

14. In B.S. Joshi's case (supra) this Court devised a ere- ative solution to the problem and quashed the proceedings in exercise of its power under Section 482 Cr.P.C .. The said deci- sion was followed by this Court in Nikhil Merchant vs. Central Bureau of Investigation & another JT 2008 (9) SC 192. [2008] 14 S.C.R. ·

15. Shri B.B. Singh, learned counsel for the respondent submitted that the High Court or even this Court would not be justified in giving directions to quash a. criminal proceedin·g in view of the compromise between th'e.parties when the offence has been expressly made non-compoundable by· Section 320 B · Cr.P.C. He urged that the Court cannot ignore. any substantive , statutory provision dealing with the subject and cannot.issue ~ writ or a direction in violation of the statute. · · · · . 16. Ordinarily we would have agreed with Mr. B.B. Singh: .. · The doctrine of judicial restraint whrch has qeen emphasized C repeatedly by this Court e.g. in Divisiona/Manager,Ar;avalFGolf . Club & another vs. Chander Hass & another JT · 20:08(3) sc·. 221, Government of Andhra Pradesh & othf!r$ vs. Smt.'P. Lax mi Devi JT 2008 (2) SC 639 restricts the.power of the -Go.urt · and does not permit the Court to ordinarily·encroach into ttie D legislative or executive ·domain. As observed by this (;curt in the above decisions, there is a broad $eparation .of powers in the Constitution and it would not be proper for .. one organ of the State to encroach into the. domain 'of anqther organ. 1i Since Section 320 Cr.P.C. has clearly stated which E offences.are compoundable arid which are not;'theHigh Court or even this Court would not ordinarily-be justified ill doing s·ome., thing indirectly which could not b'e done qfreetiy. · Even other-· .· wise, itordinarily would .not be a legitJmate- exer9ise of Jt.i,didal · power underArtlcle ·226 of the Constitution or under section 482 Cr:P.C: to direct doing someHhing which the Cr.P.C. has expressly prohibited. Section 320(9) Cr.P.c·. expressly states that no offence shall be compounded except as provided by . that Sectio.n. Hence, in my opinion, it would ordinarily not be a legitimate exercise of judicial power to direct compounding bf G a non-compoundable offence. 18. However, it has to be pointed out that Section 320 Cr.PC. cannot be read in isolation. It has to be read along with the other provisions in the Cr.P.C. One such other provision is Section 482 Cr.P.C. which reads: ·'}–.:.- .. I . t \ … ~:"- MANOJ SHARMA v. STATE & ORS. [MARKANDEY KAT JU, J.] ….–, · ;,_S~ving of inherent power of High Court. :… Nothing in this A Code shall be deemed to limit or affect the.inherent powers o.f the J-ligh C_oqrt to make such ord~rs as may be · necessar-Y t~ give effect .to any order under this Code, or to prevent abuse of the process of any· Court or otherwise to secure the ends ·ofjustice.''. . · 19. The words."Nothing in this Code" used in Section 482 is a non obstant$ clause, and gives it overriding effect over other provisions in the Cr.P.C. The words "or otherwise to se- cure the ends of justice'' in Section 482 implies that to secure the interest of justice sometimes (though-only.in very rare cases) c the High Court can: pass an order in violation ·of a provision in the Cr.P.C~ .. 20. It is true that in certain decisions of this Court it has been observed that the power under Section 482 Cr.P.C. can- not be exercised to do something which is expressly barred "—( under the Code vide Mosst. Simrikhia vs. Dolley Mukherjee AIR 1990 SC 1605 (vide paras 2 & 4), R.P Kapur vs. State of Punjab AIR 1960 SC 866 (vide para 6), Sooraj Devi vs. Pyare Lal & another AIR 1981 SC 736 (vide para 5) etc. 21. However, in my opinion these judgments cannot be read as a Euclid's formula since it is well settled that judgments of a Court cannot be read mechanically and like a Euclid's theo- rem vide Or. Rajbir Singh Dalal vs. Chaudhari Devi Lal Uni- versify 2008(8) JT 621 , Bharat Petroleum Corporation Ltd. & F another vs. N.R. Vairamani and another AIR 2004 SC 4778. In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 20, as observed in B.S. Joshi's case (supra), which has also been followed in other decisions e.g. Nikhil Merchant's case (supra). Even in the judgment of this Court in Divisional Manager Aravalli Golf Club (supra) where emphasis has been laid on judicial · restraint it has been mentioned that sometimes judicial activ- ism can be resorted to by the Court where the situation force- fully requires it in the interest of the country or society (vide para [2008] 14 S.C':R–._ 39 of the said judgment). Judicial activism was rightly resorted to by the U.S. Supreme Court in Brown vs. Board of Education 347 U.S. 483, Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. and by Lord Denning in England in several of his decisions. 22. While in the present case I respectfully agree with 'my learned brother Hon'ble Kabir J. that the criminal proceedings deserve to be quashed, the question may have to be decided in some subsequent decision or decisions (preferably by a larger Bench) as to which non-compoundable cases can be c quashed under Section 482 Cr.P.C. or Article 226 of the ~on- stitution on the basis that the parties have entered into a .com- promise. 23. There can be no doubt that a case under Section 302 D IPC or other serious offences like those under Sections 395, 307 or 3048 cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in ex- 'r ercise of its power under Section 482 Cr.P.C. or in writjurisdic- tion on the basis of compromise. However, in some other cases, (like those akin to a civil nature) the proceedings can be quashed r– by the High Court if the parties have come to an amicable settle- •4c= ment even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later deci- sions of this Court, preferably by a larger bench (so as to make it more authoritative). Some guidelines will have to be evolved F in this connection and the matter cannot be left at the sole un- guided discretion of Judges, otherwise there may be conflict- k- ing decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guic:ling principles and criteria, and not on the whims and fancies of individual Judges. Discre- G tion, after all, cannot be the Chancellor's foot. 24. I am expressing this opinion because Shri B.B. Singh, \c" learned counsel for the respondent has rightly expressed his concern that the decision in B.S. Joshi's case (supra) should H not be understood to have meant that Judges can quash any t MANOJ SHARMA v. STATE & ORS. [MARKANDEY KAT JU, J.] kind of criminal case merely because there has been a com- promise between the parties. After all, a crime is an offence against society, and not merely against a private individual. 25. With these observations, I respectfully agree with my learned brother Hon'ble Kabir J. that this appeal is to be al- lowed and the criminal proceedings in question are to be quashed. Appeal allowed. No costs. S.K.S. Appeal allowed .