By Keshab Roy Choudhury
Introduction
The Supreme Court of India (‘SC’), in some legal and academic circles, is regarded as ‘the world’s most powerful Supreme Court’. However, it can easily be argued that the High Courts (HC’s) have equal, if not more, power vis-à-vis the SC. First, the jurisdiction of the HC under A.226 of the Constitution is much wider than the jurisdiction conferred under A.32 of the Constitution, as it not only covers fundamental rights but other legal rights as well. Second, the HC’s exercise superintendence over subordinate courts under A.227 of the Constitution. The powers under A.227 are wide and encompass not only administrative superintendence but judicial superintendence as well.
It is in this context that one must understand Section (‘S’) 482 of the Code of Criminal Procedure (‘CrPC’). While the SC has maintained a consistent position of law concerning the section, I argue that the Court’s use of its inherent powers to condone settlements made in non-compoundable offences frustrates the intent and policy considerations of S.320 of the CrPC and entrenches the public-private dichotomy while dealing with offences. In the first part of this two-part piece, I shall discuss how the Court has interpreted the exercise of its inherent powers. I shall also discuss the Court’s recent approaches to quashing proceedings with respect to non-compoundable offences. In doing so, I shall highlight how it has overlooked policy considerations of the Legislature. In the second part of this piece, I shall explain how this approach entrenches the public-private divide that inadvertently has an adverse impact on fundamental rights.
Interpretation of S.482 by the Supreme Court
A few key principles are followed while exercising the HC’s power under S.482; 1) the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; 2) it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice and; 3) it should not be exercised against the express bar of law engrafted in any other provision of the Code.[1]It thus comes as no surprise that the law laid down with respect to S.482 generally tends to adopt a fairly laissez-faire approach towards criminal proceedings and investigation. This is because it does not want to stifle legitimate prosecution. In State of Haryana v Bhajan Lal, the Court, while consolidating precedent, laid down a set of non-exhaustive situations in which the HC would be justified in exercising its power under S.482 to quash an FIR.
Normally, the HC cannot interfere in the investigation between the time of filing an FIR till the submission of the report under S.173 of the CrPC, unless the police transgress their statutory powers of investigation. They may do so to avoid the abuse of court process or to secure the interest of justice. It is also possible for HCs to exercise its discretionary power under S.482 to quash an FIR after the charge sheet is filed in the interest of securing justice or avoiding the abuse of the court process.[2]
The SC has been extremely wary of setting hard limits on HC’s inherent powers, for it does not want to circumscribe HC’s ability to pass any order to secure the ends of justice. Be that as it may, the SC has extended the logic of exercising inherent powers to trump certain statutory provisions in the CrPC. In Gian Singh v State of Punjab, the Court held unequivocally that S.320 of the CrPC would not act as bar to the HC exercising its powers under S.482 to quash proceedings wherein a settlement had been reached. In other words, even where a non-compoundable offence is concerned, a mere settlement of the same would not be hit by S.320 if the HC is exercising its inherent powers to secure the ends of justice.
The Court stated that the exercise of HCs’ power under S.482 to quash proceedings in which settlement has been arrived at in case of non-compoundable offences did not indirectly compound non-compoundable offences. The Court also made a distinction between the power of compounding under S.320 and its powers of quashing proceedings under S.482 by stating that the latter was to be used to strictly secure the interest of justice and when the possibility of conviction was low due to a settlement between the victim and the accused.
It is now a settled principle of law that offences which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. This follows the logic that for offences to be categorized as non-compoundable, the offence must; 1) have a serious impact on society or; 2) affect the security of the state or; 3) be of a grave nature. While deciding to include a list of offences that could be compoundable under S.320, the Legislature had clearly intended that only those offences would be compoundable, otherwise they would not have introduced S.320(9) to the CrPC. In interpreting S.482 as an overriding provision, the SC directly contradicted the position that powers under S.482 could not be exercised in derogation to other provisions in the CrPC.
In Narinder Singh v State of Punjab, Sikri J noted that if there was a ‘heinous’ crime, it was to be treated as a crime against society and not as against an individual. As a result, even if there was settlement between the accused and the victim, the State would have a duty to punish the crime doer, in order to effect deterrence.The Court, while summarizing the precedent laid down in Gian Singh, also held that in quashing of the criminal proceedings involving the settlement of a non-compoundable offence, the timing of the settlement was crucial. If it was done immediately post the commission of the alleged offence, the HC could adopt a liberal view towards quashing the proceedings. However, if it was done after prosecution evidence is almost complete or when the trial court convicts the accused and the latter appeals to the High Court, the Court should not exercise its powers under S.482 of the CrPC to quash proceedings.
There has also been a discussion of crimes against society and crimes against the individual in State of Rajasthan v Shambhu Kewat, wherein the Court observed that ‘serious’ offences (which in this case was attempt to murder) were crimes against society and could not be settled with money as it would send out a wrong message to society. This begs the question as to why the Courts must embark on a journey to classify certain offences as against individuals or against the society. By virtue of being present in the criminal statute book, should it not follow that all offences listed therein are naturally against the society?
Frustration of the statutory scheme and policy considerations of the CrPC
The judgements rendered in the aforementioned cases are highly problematic. The Court in Gian Singh makes a distinction between the types of offences that cannot be compounded at any cost with those that are of ‘an overwhelming and predominantly civil flavor’ which may be settled. The Court has effectively stepped into the shoes of the Legislature and has determined which offences may be settled and which cannot be. This categorization is effectively in the nature of a policy decision, which is exclusively in the legislative or executive domain. This is not akin to the standard judicial review wherein the Court tests the legislative competence or examines an impugned law on the touchstone of fundamental rights. Herein, the Court is actively taking a policy decision to classify offences based on its effects, which is outside its domain. This renders S.320 of the CrPC useless, effectively invalidating the policy considerations of the Legislature. In condoning such settlements, the Court has indirectly done what is expressly barred by S.320 in the name of securing justice.
The Court also does little to explain why it has made this distinction, other than saying some are ‘more serious’ than others. Why does the Court wish to tackle the offence of rape with greater procedural rigor than that of dowry and marital cruelty under S.498A of the Indian Penal Code (‘IPC’) 1860? There does not appear to be any intelligible differentia to warrant such a classification. Additionally, aren’t certain offences which arise out of civil, mercantile, or other transactions ‘offences of moral turpitude’ or ‘serious offences’, for they can disrupt entire businesses and regular societal functioning? If such offences are to be interpreted as purely civil in nature, surely the Legislature would have removed them from the criminal statute book and placed them in mercantile or marriage statutes with civil remedies.
Thus, in exercising its inherent powers under S.482 of the CrPC, the HC in the aforementioned cases has diluted the effect of S.320 of the CrPC. In doing so, it has disregarded policy considerations and the scheme of the CrPC in itself. It must be noted that the legal position will further be explored and clarified in the second part of this piece, wherein I shall discuss the recent three-judge bench decision in State of Madhya Pradesh v Laxmi Narayan. Additionally, we shall see how the decisions in Laxmi Narayan and the aforementioned cases can have a disproportionate impact on women who are members of a family.
[ The author is a second-year student studying at Jindal Global Law School, Sonipat ]
[1]K Chandrasekharan Pillai, RV Kelkar’s Code of Criminal Procedure (Eastern Book Co 2014) 90
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