IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1619 OF 2008 @ S.L.P. (Crl.) NO.5265 of 2007

Manoj Sharma                 ..Appellant

Vs.

State & Ors    …Respondents

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. The question whether a First Information Report

under Sections 420/468/471/34/120-B IPC can be

quashed either under Section 482 of the Code of

Criminal Procedure or under Article 226 of the

Constitution,  when  the  accused  and  the

complainant  have compromised  and settled  the

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matter  between  themselves,  is  the  question

which arises for decision in this appeal.

3. The  identical  question  fell  for  the

consideration of this Court in the case of B.S.

Joshi vs. State of Haryana,[2003 (4) SCC 675]

wherein also the question arose as to whether

criminal  proceedings  or  a  First  Information

Report or complaint filed under Section 498-A

and 406 IPC by the wife could be quashed under

Section 482 CrPC on account of the fact that

the  offences  complained  of  were  not

compoundable  under  Section  320  of  the  Code.

The objection taken in the said case has also

been raised by Mr. B.B. Singh, learned advocate

for the respondent State.

4. In  B.S.  Joshi’s  case,  this  Court  drew  a

distinction between compounding an offence as

permitted under Section 320 CrPC and quashing

of the complaint or criminal proceedings under

Section 482 CrPC as also Article 226 of the

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Constitution.  Pointing out that the appellant

in the said case had not prayed for compounding

the offence as the same was not compoundable,

this  Court  observed  with  reference  to  the

earlier  decision  in  Pepsi  Food  Limited  vs.

Special  Judicial  Magistrate,  [1998  (5)  SCC

749],  that  where  the  Court  will  exercise

jurisdiction  under  Section  482  of  the  Code

could not be inflexible or rigid formulae to be

followed by the Courts could not be laid down.

Exercise of such power would depend upon the

facts and circumstances of each case but with

the  sole  object  of  preventing  abuse  of  the

process of any Court, or otherwise to secure

the ends of justice.  It was also observed that

it is well settled that these powers have no

bar, but the same was required to be exercised

with utmost care and caution.  Accordingly, the

learned Judges held that the power of the High

Court under Section 482 of the Code to quash

Criminal proceedings or FIR or complaint were

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not circumscribed by Section 320 of the Code of

Criminal Procedure.

5. While the appellant herein strongly relied on

the decision in B.S. Joshi’s case.  Mr. B.B.

Singh,  learned  counsel  appearing  for  the

respondent-State  urged that  having regard  to

the specific provision in the Code regarding

compounding  of offences,  and indicating  what

offences  may  be  compromised  either  with  or

without the leave of the Court, possibly the

decision rendered in B.S. Joshi’s case required

a second look.  Relying on the decision of this

Court  in  Inspector  of  Police,  CBI  vs.

Rajagopal,  [2002  (9)  SCC  533],  K.G.  Prem

Shankar vs. Inspector of Police and Anr. [JT

2002  (7)  SC  30]  and  also  Textile  Labour

Association  and Anr.  Vs. Official  Liquidator

and Anr. [JT 2004 (suppl.1) SC 1], Mr. Singh

submitted that in B.S. Joshi’s case there was a

departure from the view taken in the first of

the two aforesaid cases.   

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6. We  have carefully  considered the  submissions

made on behalf of the respective parties and

the facts involved in this case, and we are not

inclined to accept Mr. Singh’s contention that

the  decision  in  B.S.  Joshi’s  case  requires

reconsideration, at least not in the facts of

this case.   What was decided in B.S. Joshi’s

case was the power and authority of the High

Court  to exercise  jurisdiction under  Section

482  CrPC  or  under  Article  226  of  the

Constitution to quash offences which are not

compoundable.  The law stated in the said case

simply indicates the powers of the High Court

to  quash  any  criminal  proceeding  or  First

Information Report or complaint whether it be

compoundable or not.  The ultimate exercise of

discretion  under  Section  482  CrPC  or  under

Article 226 of the Constitution is  with the

Court which has to exercise such jurisdiction

in  the  facts  of  each  case.   It  has  been

explained  that  the  said  power  is  in  no  way

limited by the provisions of Section 320 CrPC.

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We are unable to disagree with such statement

of law.  In any event, in this case, we are

only  required  to  consider  whether  the  High

Court  had  exercised  its  jurisdiction  under

Section 482 Cr.P.C. legally and correctly.

7. In view of the nature of the offences set out

in  the  complaint,  the  High  Court  did  not

consider it an appropriate case for exercising

its  jurisdiction  under  Article  226  of  the

Constitution for quashing the same.

8. In  our  view,  the  High  Court’s  refusal  to

exercise its jurisdiction under Article 226 of

the  Constitution  for  quashing  the  criminal

proceedings  cannot  be  supported.   The  First

Information Report, which had been lodged by

the complainant indicates a dispute between the

complainant  and  the  accused  which  is  of  a

private nature.  It is no doubt true that the

First Information Report was the basis of the

investigation  by the  Police authorities,  but

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the dispute between the parties remained one of

a  personal  nature.   Once  the  complainant

decided not to pursue the matter further, the

High Court could have taken a more pragmatic

view of the matter.  We do not suggest that

while exercising its powers under Article 226

of the Constitution the High Court could not

have  refused  to  quash  the  First  Information

Report, but what we do say is that the matter

could have been considered by the High Court

with greater pragmatism in the facts of the

case. As we have indicated hereinbefore, the

exercise of power under Section 482 Cr.P.C. or

Article  226  of  the  Constitution  is

discretionary to be exercised in the facts of

each case.

9. In the facts of this case we are of the view

that continuing with the criminal proceedings

would be an exercise in futility.  

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10. We, accordingly, allow the appeal and set aside

the  order  of  the  High  Court  and  quash  the

criminal proceedings pending before the learned

Additional  Chief  Metropolitan  Magistrate,

Karkardooma Court, Delhi, in FIR No.50 of 1997

dated 31st January, 1997 P.S. Vivek Vihar (East

Delhi).

_________________J. (ALTAMAS KABIR)

 New Delhi

Dated:October 16, 2008

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.___________OF 2008 [@ Special Leave Petition(Criminal_ No. 5265 of 2007]

Manoj Sharma ..    Appellant

-versus

State & Others .. Respondents

J U D G M EN T

Markandey Katju, J.

1. I have read the judgment of my learned brother Hon. Kabir, J. and I

respectfully agree with his conclusion that the appeal should be allowed and

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the judgment of the High Court as well as the criminal proceedings pending

before the Additional Chief Metropolitan Magistrate, Karkardooma Court,

Delhi  in  FIR No. 50 of 1997 dated 31st January, 1997 P.O. Vivek Vihar

(East Delhi) against the appellant should be quashed.   

2. However, I wish to give a separate concurring judgment in view of

the importance of the issue involved in this case.

3. The question involved in this case is whether an FIR under Section

420/468/471/34/120-B IPC can be quashed under Section 482 Cr.P.C. or

Article 226 of the Constitution when the accused and the complainant have

compromised and settled the matter between themselves.  

4. The allegations in the FIR are as follows:

“Statement  of  Sanjay Pal  S/o  Mahendra singh Pal  R/o House  No.  A-25,  Jhilmil  Colony,  Vivek  Vihar,  Delhi, stated that I reside at the above mentioned address with my family.  I got financed a Maruti Van bearing No. DL- 1CB-4065  from  Shri  Manoj  Kumar  Sharma  –  Vijay Lakshmi  Finance  &  Investment  Company  before  two years  back for  a  consideration amount  of  Rs.  30,000/- and I paid Rs. 3954/- as first installment.  After that Shri Man Mohan Sharma R/o D-131,  Jhilmil  Colony,  came and told me that your finance is fabricated one, that is why your vehicle has not been financed by me from Real Auto Deals which is run by my brother-in-law.  I have received the payment given by you and your file.   He asked me to give return the first R.C.   He gave me the

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new R.C..  I returned him the old R.C.  He suggested me that now the financer of your vehicle is Real Auto Deals. I  was  shocked  that  how  the  vehicle  got  transferred without  signing  any  form  and  paper.   Man  Mohan Sharma used  to  receive  the  installments  in  cash  every month from me.  The receipts issued to me put up with neither  rubber  stamp nor  used  the  letter  head  of  Real Auto Deals.   The cheques received from me, encashed him in different-different names instead depositing in the account of Real Auto Deals.   When it has come to my notice that he is playing fraud with me, then visited the bank and got  stopped the payment of  the  cheques.  He came to me when the cheque was dishonoured and asked me why you stop the payment.  I explained him that I have already sent you a notice stating that I will make the  payments  of  the  installments  in  the  name of  Real Auto  Deals  but  you are  not  doing  so,  therefore,  I  got stopped  the  payments.  Thereafter,  on  27.12.1995  at about 10 O’clock he came to me in Jhilmil along with an unknown person, I can recognize him if he comes to me, took  my  said  Maruti  Van  with  his  help  without  my consent  by  showing  me  a  paper  duly  stamped  by  the police.   Vijay Lakshmi Finance,  Real  Auto  Deals  and Man Mohan Sharma, have sold my vehicle to some other place  by making my forged signatures  and  by playing fraud  with  me,  in  connivance  of  each  other.   The appropriate legal action may kindly be taken against all these persons.    Statement heard which is  correct.  Sd/- English.  Sanjay Pal 31.1.97 Attested Sd/- Snglish Satya Narayan ASI 31.1.97”.  

5. A perusal of the FIR shows that the allegations against the appellant

were  that  he  forged  documents  in  respect  of  a  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

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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 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 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 mentioned in the 3rd

column of  the  table  in  that  provision.   Also,  in  view of  Section  320(2)

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certain other offences can be compounded with the permission of the Court.

However, Section 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 permission 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

Section  420  IPC,  which  can  be  compounded  with  the  permission  of  the

Court in view of Section 320(2), the other provisions mentioned in the FIR

in question could not 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 except in relation to the allegations about Section 420

IPC.   

11. There  are  other  provisions  in  the  IPC  e.g.  Section  498A  which

apparently cannot be compounded even with the permission of the Court in

view of Section 320 (9) Cr.P.C.

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12. However,  this  was  creating  a  lot  of  difficulty  and  hardship  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 675 [= JT 2003(3) SC 277 = AIR 2003

SC 1386].  In that decision 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  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 proceedings if it comes to the conclusion that the ends of

justice  so  requires  e.g.  where  there  would  almost  be  no  chance  of

conviction.  In a case under Section 498A IPC if the parties enter into a

compromise the chances of an ultimate conviction are bleak, and hence no

useful  purpose  would be served by allowing the criminal  proceedings  to

continue.  They should, therefore, be quashed by exercising power under

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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 creative solution to

the problem and quashed the proceedings  in  exercise  of its  power under

Section 482 Cr.P.C..  The said decision was followed by this Court in Nikhil

Merchant vs.  Central  Bureau of Investigation & another JT 2008 (9) SC

192.   

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 proceeding in view of the compromise between the parties

when the offence has been expressly made non-compoundable by Section

320 Cr.P.C.  He urged that the Court cannot ignore any substantive statutory

provision dealing with the subject and cannot issue a 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 which has been emphasized repeatedly by this Court e.g.

in  Divisional Manager, Aravali Golf Club & another vs.  Chander Hass &

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another JT 2008(3) SC 221,  Government of Andhra Pradesh & others vs.

Smt.  P. Laxmi Devi JT 2008 (2) SC 639 restricts the power of the Court

and does not permit the Court to ordinarily encroach into the legislative or

executive domain.  As observed by this Court in the above decisions, there

is  a broad separation  of  powers  in  the Constitution  and it  would  not  be

proper for one organ of the State to encroach into the domain of another

organ.   

17. Since  Section  320  Cr.P.C.  has  clearly  stated  which  offences  are

compoundable and which are not, the High Court or even this Court would

not ordinarily be justified in doing something indirectly which could not be

done  directly.   Even  otherwise,  it  ordinarily  would  not  be  a  legitimate

exercise of judicial power under Article 226 of the Constitution or under

Section  482  Cr.P.C.  to  direct  doing  something  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 Section.  Hence, in

my opinion,  it  would  ordinarily  not  be  a  legitimate  exercise  of  judicial

power to direct compounding of a non-compoundable offence.

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18. However, it has to be pointed out that Section 320 Cr.P.C. 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:

“ Saving of inherent power of High Court. – Nothing in  this  Code  shall  be  deemed  to  limit  or  affect  the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

19. The  words  “Nothing  in  this  Code”  used  in  Section  482  is  a  non

obstante clause, and gives it overriding effect over other provisions in the

Cr.P.C.  The words “or otherwise to secure the ends of justice” in Section

482 implies that to secure the interest of justice sometimes (though only in

very rare cases) 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.  cannot  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.

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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 theorem vide  Dr. Rajbir Singh Dalal vs.

Chaudhari  Devi  Lal  University 2008(8)  JT  621,  Bharat  Petroleum

Corporation Ltd. & 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

activism can  be  resorted  to  by  the  Court  where  the  situation  forcefully

requires it in the interest of the country or society (vide para 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

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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

quashed under Section 482 Cr.P.C. or Article 226 of the Constitution on the

basis that the parties have entered into a compromise.  

23. There can be no doubt that a case under Section 302 IPC or other

serious  offences  like  those  under  Sections  395,  307  or  304B cannot  be

compounded and hence proceedings in those provisions cannot be quashed

by the High Court in exercise of its power under Section 482 Cr.P.C. or in

writ jurisdiction on the basis of compromise.  However, in some other cases,

(like those akin to a civil  nature) the proceedings can be quashed by the

High Court if the parties have come to an amicable settlement even though

the provisions are not compoundable.  Where a line is to be drawn will have

to be decided in some later decisions of this Court, preferably by a larger

bench (so as to make it more authoritative).  Some guidelines will have to

be  evolved  in  this  connection  and  the  matter  cannot  be  left  at  the  sole

unguided discretion of Judges, otherwise there may be conflicting decisions

and judicial  anarchy.   A judicial  discretion  has  to  be exercised  on  some

objective guiding principles and criteria, and not on the whims and fancies

of individual Judges.  Discretion, after all, cannot be the Chancellor’s foot.   

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24. I am expressing this opinion because Shri B.B. Singh, learned counsel

for the respondent has rightly expressed his concern that the decision in B.S.

Joshi’s case (supra) should not be understood to have meant that Judges can

quash  any  kind  of  criminal  case  merely  because   there  has  been  a

compromise 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  allowed  and  the  criminal

proceedings in question are to be quashed.  Appeal allowed.  No costs.

…………………………..J. (Markandey Katju)

New Delhi; 16th October, 2008

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