Mridula R. Bhatkar, J.@mdashRule. With the consent of the parties made returnable forthwith. 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 u/s 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 u/s 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. 100/2011 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 u/s 482 of the Cr.P.C. and allow the prayer of compounding the offence.
2. The issue raised in this criminal writ petition is whether the offence u/s 279 of the I.P.C. though not covered u/s 320 of the Cr.P.C. is compoundable or not?.
3. 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 u/s 338 of the I.P.C. He submitted that the offence punishable u/s 379 and section 338 of I.P.C. occurred due to the rash driving of the offender. However, section 338 is compound-able u/s 320 of the Code. Learned Counsel submitted that the compounding provision therefore is to be made applicable mutandis in the offences punishable u/s 279 of the I.P.C. The offence u/s 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 any 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 u/s 320 of the Code it has to be entertained. Learned Counsel further submitted that this petition is filed u/s 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.
4. In support of his submission in respect of compounding of offence u/s 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
5. 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.
6. Admittedly, offence u/s 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 u/s 320 is exhaustive and not enumerated. One the said section offence u/s 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 sub-section (1) or (2), the offence punishable u/s 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.
7. u/s 279, if rash and negligent driving on the public way is endangering the human life or is likely to cause hurt or injury to any other person then that is considered as an offence and u/s 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 u/s 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 u/s 279 is against public the safety. While offence u/s 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.
8. 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 by or in any manner then he has committed offence punishable u/s 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 compound-able u/s 320 of the Cr.P.C.
9. 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 u/s 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.
10. 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. In the case of
11. In the present case, there is no other person and so the accused is not charged u/s 328 of I.P.C., but is charged simpliciter for u/s 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 u/s 482 either to quash the proceedings or compounding of the offences 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 u/s 482 of the Cr.P.C. Is to be exercised Ex Debito Justitiae 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 u/s 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 extraordinary 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, should 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.
12. Thus, the powers u/s 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 u/s 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. u/s 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 citizens.
13. However, the person who committed the offence u/s 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 u/s 482 undoubtedly can be invoked for setting aside and quashing the proceedings u/s 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.
14. In paragraph 48 of Gian Singh Vs. State of Punjab, guidelines are reproduced from Kulwinder Singh Vs. 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 redressal of their financial or commercial claim.
(d) Minor offences as u/s 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 u/s 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 u/s 320 Cr.P.C.
15. 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 u/s 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.
16. 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 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.
