Sunday, 27 March 2016

When prosecution U/S 279 of IPC can be quashed?

In the present case, the accused had injured himself in
the accident and the police officer is the complainant. The police
officer cannot come forward to compound the offence. The car of the
petitioner dashed the mini bus and thus, the owner of the bus is fact
an aggrieved person. Thus, if at all that aggrieved person is ready to
settle the matter and has no grievance in quashing the proceeding then
only the offence under section 279 can be compounded and the
proceeding can be quashed. In the absence of such person who is not
the complainant owner,victim or an aggrieved person, quashing of the
proceeding will be unjust to him as he will be losing a forum to put
up his grievance when his vehicle was dashed and damaged.
Therefore, it is necessary for such aggrieved person to come before
the Court.
 In the present case earlier the aggrieved person was not
made a party. However, with leave he was made party respondent
along with State and appearance is filed by the owner of the bus
through his counsel. He has produced an Affidavit -in-Reply of the
aggrieved person along with his identity. Learned counsel for the
respondent submitted that though his bus met with an accident there
was a minor damage to front portion of his bus and subsequently he
sold the bus. As of today, he does not have any grievance against the
petitioner. He also has no claim for repair against the petitioner and
therefore he gives no objection if the proceedings are compounded,
quashed and set aside.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 12 OF 2014
Shri Vishal Agarwal,

 V 
 State of Goa,

 CORAM: SMT. MRIDULA R. BHATKAR, J.
 DATE: 20TH FEBRUARY, 2014.2 Wpcr 12 2014
Citation;2016 CRLJ(NOC)71 Bom

Rule. With the consent of the parties made returnable
forthwith.
2. This petition is directed against the order dated
23/2/2012 passed by the learned Additional Sessions Judge, Mapusa
and the order passed by the learned Judicial Magistrate First Class on
14/10/2011 disallowing the application of the petitioner for
compounding the offence punishable under section 279 of the I.P.C.
The petitioner was driving the vehicle Zen on 7/1/2010 at Agacaim
and due to his rash driving dashed one mini bus on its front side and
thereby caused damage to the bus and the petitioner who was the
driver of the zen also got injured. Except the petitioner, none was
injured. Police registered offence against the petitioner. He was
charge sheeted and now he is facing a Criminal Case No. I.P.C/S/
143/10/C before the JMFC, at Panaji. The petitioner got injured
himself and filed an application for getting the offence compoundable
before the learned JMFC. The Magistrate after considering the
provisions under section 320 of the Cr. P.C held that the offence is not
falling in either of the schedule and therefore dismissed the said
application. The criminal revision application bearing no.100/20113 
filed by the petitioner was also dismissed on the same ground by the
Addl. Sessions Judge, Mapusa. Hence this petition is filed to set aside
and quash the proceedings under section 482 of the Cr. P.C and allow
the prayer of compounding the offence.
3. The issue raised in this criminal writ petition is whether
the offence under section 279 of the I.P.C. though not covered under
section 320 of the Cr. P.C. is compoundable or not?.
4. Learned counsel for the petitioner has submitted that the
learned Magistrate and the learned Sessions Judge have failed to
appreciate the legal position in respect of the offences under section
338 of the I.P.C. He submitted that the offence punishable under
section 379 and section 338 of I.P.C. occurre due to the rash driving
of the offender. However, section 338 is compoundable under section
320 of the Code. Learned counsel submitted that the compounding
provision therefore is to be made applicable mutanis mutains in the
the offences punishable under section 279 of the I.P.C. The offence
under section 338 is compoundable if the person injured is ready to
compromise the matter. However, in the present case, the petitioner/
driver of the Zen is the injured person. Thus, in the absence of any4 Wpcr 12 2014
other injured person, he cannot bring any other person such injured
person for compounding the offence. Thus, the petitioner is the
offender against himself and therefore, he came forward with an
application under section 320 of the Code it has to be entertained.
Learned counsel further submitted that this petition is filed under
section 482 of the Cr.P.C. and as the High Court has inherent powers
to quash and set aside the said proceedings and impugned complaint
and the proceedings which is pending before the learned JMFC is to
be set aside and quashed.
5. In support of his submission in respect of compounding
of offence under section 229, he relied on the unreported judgment of
the learned Single Judge of the Bombay High Court in Criminal Writ
Petition No.42 of 2013 dated 29/4/2013. He further relied on Full
Bench judgment of the Punjab High Court in the case of “Kulwinder
Singh and Ors Vs. State of Punjab and Anr.”, reported in 2007 (4)
CTC 769. On the point of powers of the High Court under section 482
in respect of compounding any compoundable offence, he relied on
“Gian Singh Vs. State of Punjab and Anr” reported in (2012) 10 SCC
303. 5 
6. Learned Additional Public Prosecutor for the respondent
State oppose the petition. The learned A.P.P submitted that in the
present case the complainant is a Police Officer and therefore, this
case is not compoundable. She submitted that the complainant in the
present case though a police officer, the owner or the driver of the bus
which got damaged is the person aggrieved due to this offence. She,
therefore, submitted that this case cannot be compounded and the
petition be dismissed.
7. Admittedly, offence under section 279 is not
compoundable. Under sub-section (1) of section 320 in the first part
enlisted under the table offences are compoundable with the consent
of the persons the description of the persons by whom the description
the offence can be compoundable is given and the said said table
mainly discloses that those are the persons who are either
complainant or victim or person aggrieved. Under sub section (2) of
320 the offences are compoundable with permission of the Court and
so the description of the person by whom the offence may be
compounded is given and such offenders are either the complainant
or victim or aggrieved person. The list of offences given under
section 320 is exhaustive and not enumerated. One the said section6 Wpcr 12 2014
offence under section 338 is made compoundable if the person to
whom hurt is caused then with the permission of the Court offence
can be compounded. However, in either of the tables and under subs
sections 1 or 2, the offence punishable under section 279 is not
mentioned. It is useful to reproduce both the sections i.e. 279 and 338
for comparison.
Section 279 in The Indian Penal Code, 1860
279. Rash driving or riding on a public way.--
Whoever drives any vehicle, or rides, on any public
way in a manner so rash or negligent as to endanger
human life, or to be likely to cause hurt or injury to
any other person, shall be punished with
imprisonment of either description for a term which
may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
Section 338 in The Indian Penal Code, 1860
338. Causing grievous hurt by act endangering life or
personal safety of others.-- Whoever causes grievous
hurt to any person by doing any act so rashly or
negligently as to endanger human life, or the
personal safety of others, shall be punished with
imprisonment of either description for a term which
may extend to two years, or with fine which may
extend to one thousand rupees, or with both. Of
wrongful restraint and wrongful confinement
8. Under section 279, if rash and negligent driving on the
public way is endangering the human life or is likely to cause hurt or7 Wpcr 12 2014
injury to any other person then that is considered as an offence and
under section 338. If a grievous hurt by any person is caused by doing
rash and negligent act and if endangering human life to others then
the offence is committed. The nature of the offence appears similar.
However, the basic difference between these two offences is of their
classification. The offence under section 279 falls under the Chapter
XIV of the I.P.C which is captioned as “Chapter IV – Of Offences
Affecting the Public Health, Safety, Convenience, Decency and Morals
Thus, the offence under section 279 is against public the
safety. While offence under section 338 is covered under Chapter
XVI, where the offences affecting the human body are taken into
account. Thus, at this stage it is useful to refer to section 320 of the
Code.
9. The offences under the I.P.C which are compoundable
under sub section 1 of section 320 of the Code start from section 298
of the I.P.C. Thus, under the scheme of section 320, the offences
which are committed and are covered prior to section 298 of the I.P.C.
are not mentioned, hence are not compoundable. Sections 295 to 298
are the offences relating to religion. Section 298 states that if a
person is intending to offend religious feelings of a person either by8 Wpcr 12 2014
or in any manner then he has committed offence punishable under
section 298 of the I.P.C and such offence is compoundable whose
religious feelings are intended to be wounded . It is to be noted that
the Chapter prior to chapter XIV are the offences either against the
public, or the offences against public justice or public servants or
they are the offences against the sovereignty of the nation and
therefore these offences are not compoundable under section 320 of
the Cr.P.C.
10. The submission of learned counsel for the petitioner that
if the accused himself is an injured person, then if he makes an
application that the offence is to be compounded then that ought to
have been accepted by the learned magistrate because under section
338 if the person injured is ready to compound then the offence is
compoundable under table II of section 320 of the Code. Therefore, in
this case the accused himself is the person injured and therefore, he
has made an application for compounding the offence.
11. These submissions apparently may look convincing
however, on close scrutiny of the law do no stand to reason. The act
of compounding the offence is always bilateral and not unilateral. In9 Wpcr 12 2014
the case of “Pranav Goel Vs. State of Goa”, the accused was charged
for the offences punishable under sections 279 and 338 of the I.P.C.
and application was made under section 482 of the Cr. P.C for
quashing the said proceedings. In the said matter, as the section 338
was invoked. There was another person who was injured and he
came forward to compound the offence and therefore, though the
accused was charged under section 279 of the I.P.C., due to the
settlement arrived at between the petitioner the said petitioner and
the original complainant, i.e., injured the Court recorded that
possibility of convincing the petitioner for the offence 279 of the
I.P.C. was remote and bleak and the petition was allowed.
12. In the present case, there is no other person and so the
accused is not charged under section 328 of I.P.C., but is charged
simplicitor for under section 279 of the I.P.C. The learned counsel in
order to substantiate his submissions has relied on the ratio laid down
in the judgment of Punjab and Haryana High Court in the case of
“Kulwinder Singh and ors.” (supra) and also on the judgment of “
Gian Singh “, (supra). The Full Bench of the Punjab High Court has
dealt with the issue of the powers of the High Court under section 482
either to quash the proceedings or compounding of the offences10 Wpcr 12 2014
which are not declared compoundable by the legislature and whether
the only exception carved out is pertaining to the offences arising of
the matrimonial dispute?. The Full Bench while answering this issue
has laid down en-lighting ratio which is reproduced as follows:
 “ The power under Section 482 of the Cr.P.C. Is to
be exercised Ex-Debitia Justitia to prevent an abuse
of process of Court. There can neither be an
exhaustive list nor the defined para-meters to enable
to High Court to invoke or exercise its inherent
powers. It will always depend upon the facts and
circumstances of each case. The power under
Section 482 of the Cr.P.C has no limits. However,
the High Court will exercise it sparingly and with
utmost care and caution. The exercise of power has
to be with circumspection and restraint. The Court is
a vital and an extra-ordinary effective instrument to
maintain and control social order. The Court play
role of paramount importance in achieving peace,
harmony and ever-lasting congeniality in society.
Resolution of a dispute by way of a compromise
between two warring groups, therefore, should11 Wpcr 12 2014
attract the immediate and prompt attention of a
Court which should endeavour to give full effect to
the same unless such compromise is abhorrent to
lawful composition of the society or would promote
savagery.”
13. Thus, the powers under section 482 of Cr.P.C. is not
limited. However, it is imperative on the High Court to use these
powers sparingly. Section 279 as observed earlier falls under the
category of the offences covered under Chapter XIV which are
committed against public safety and public health, against the State,
public servants etc. These offences directly affect adversely on the
public at large, and therefore, they are not made compoundable under
section 320 of the Cr. P.C. Thus, if a person drives in rash and
negligent manner on the road and dashes on a tree and gets injured,
yet it is an offence, i.e. under section 279 of the I.P.C. No argument is
open to him that he has injured himself and therefore the offence is
compoundable with himself. The reason of an individual's
accountability to public is extremely thoughtful, in a way controlling
social behaviour of the citizens12 Wpcr 12 2014
14. However, the person who committed the offence under
section 279 cannot be rendered remedy-less, if the damage caused is
not so severe or grave in nature. Thus inherent powers of the High
Court under section 482 undoubtedly can be invoked for setting aside
and quashing the proceedings under section 279 of the I.P.C.
Depending on the facts and circumstances of each case. In “Gian
singh Vs. State of Punjab” the Supreme Court in para 48 of the
judgment has referred to the judgment of the Full Bench of the
Haryana and Punjab High Court in the case of “Kulwinder Singh”
and confirmed the view taken by the Full Bench of the Punjab High
Court. It held further that the High Court can very well set aside and
quash the offence or criminal proceeding on ground of settlement
between the parties.
15. In paragraph 48 of “Gian Singh Vs. State of Punjab”,
guidelines are re- produced from (Kulwinder Singh V. State of
Punjab, CTC pp.783-84, para 21).
 “ (a) Cases arising from matrimonial discord,
even if other offence are introduced for aggravation
of the case.
 (b) Cases pertaining to property disputes
between close relations, which are predominantly
civil in nature and they have a genuine or
belaboured dimension of criminal liability.
Notwithstanding a touch of criminal liability, the
settlement would bring lasting peace and harmony to
larger number of people.
 (c ) Cases of dispute between old partners or
business concerns with dealings over a long period
which are predominantly civil and are given or
acquire a criminal dimension but the parties are
essentially seeking a reddressal of their financial or
commercial claim.
 (d) Minor offences as under section 279 IPC
may be permitted to be compounded on the basis of
legitimate settlement between the parties. Yet
another offence which remains non-compoundable
is Section 506 (II) IPC, which is punishable with 7
years imprisonment. It is the judicial experience that
an offence under Section 506 IPC in most cases is
based on the oral declaration with different shades of
intention. Another set of offences, which ought to
be liberally compounded, are sections 147 and 148
IPC, more particularly where other offences are
compoundable. It may be added here that the State
of Madhya Pradesh vide M.P. Act 17 of 1999
(Section 3) has made Sections 506(II) IPC, 147 IPC
and 148 IPC compoundable offences by amending
the schedule under Section 320 CR.P.C.” 
16. In the present case, the accused had injured himself in
the accident and the police officer is the complainant. The police
officer cannot come forward to compound the offence. The car of the
petitioner dashed the mini bus and thus, the owner of the bus is fact
an aggrieved person. Thus, if at all that aggrieved person is ready to
settle the matter and has no grievance in quashing the proceeding then
only the offence under section 279 can be compounded and the
proceeding can be quashed. In the absence of such person who is not
the complainant owner,victim or an aggrieved person, quashing of the
proceeding will be unjust to him as he will be losing a forum to put
up his grievance when his vehicle was dashed and damaged.
Therefore, it is necessary for such aggrieved person to come before
the Court.
17. In the present case earlier the aggrieved person was not
made a party. However, with leave he was made party respondent
along with State and appearance is filed by the owner of the bus
through his counsel. He has produced an Affidavit -in-Reply of the
aggrieved person along with his identity. Learned counsel for the
respondent submitted that though his bus met with an accident there
was a minor damage to front portion of his bus and subsequently he
sold the bus. As of today, he does not have any grievance against the
petitioner. He also has no claim for repair against the petitioner and
therefore he gives no objection if the proceedings are compounded,
quashed and set aside.
18. In view of this affidavit, the settlement has taken place.
The proceedings before the JMFC are to be quashed and set aside.
The orders passed by the learned JMFC and learned Sessions Judge
are hereby quashed and set aside. The Criminal proceedings in C.C.
No. IPC/143/S/10/C pending before the learned JMFC at Panaji are
set aside and quashed.
 SMT. MRIDULA R. BHATKAR, J.
Ap/-
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