Cr.A.No.1198/2007
20.08.2014
Shri Vivek Shukla, learned counsel for the appellant. Shri Arvind Singh, learned Panel Lawyer for the respondent/State. Heard on I.A. No.15062/2014, an application for suspension of sentence and grant of bail on behalf of the appellant.
The appellant has been convicted under Section 20(b) (ii) (B) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment of 3 years and fine of Rs.5,000/­, with default stipulation.
Learned counsel for the appellant submits that earlier the application filed by the appellant for suspension of sentence and grant of bail was allowed by this Court vide order dated 11/6/2007 and his remaining jail sentence was suspended, however, because of his non­appearance before this Court, his bail bonds were forfeited and warrant of arrest was issued by this Court vide order dated 13/3/2013. Learned counsel further submits that now the appellant will appear on each and every dates given to him for his appearance. He also submits that there is no likelihood of coming up of this appeal for final hearing in near future, therefore, he prays that remaining jail sentence of the appellant may be suspended and he be released on bail.
Learned Panel Lawyer for the State opposes the prayer for suspension of sentence and grant of bail. On due consideration of the facts and circumstances of the case and the nature of allegation, this application is allowed. Execution of jail sentence of the appellant ­Uma Shankar Chaurasiya is suspended. He is directed to be enlarged on bail on furnishing a personal bond in the sum of Rs.15,000/­ (Rupees Fifteen Thousand only) and a surety bond in the like amount to the satisfaction of trial Court for his appearance before the Chief Judicial Magistrate, Rewa firstly on 16th March, 2014 and on such other dates as may be fixed by the said Court in this regard.
C.C. as per rules. (Subhash Kakade)
Judge
ts
M.Cr.C. No.9013/2013
21.02.2014
Shri Abhijeet Awasthy, Advocate with Shri Anuj Puri, Advocate for the applicant.
Dr. (Smt.) Anjali Gyanani, Government Advocate for the respondent/State.
The prosecution story is that on 06.09.2007 the present applicant unlawfully entered into the house of complainant at around 11 a.m. in the morning and started using filthy language, manhandled her due to which she sustained abrasion. On complaint police registered FIR having Crime No.345/07 alleging commission of offence under Section 294, 323, 448, 506­B of IPC.
That, on filing of compromise application by the parties the learned Judicial Magistrate endorsing such application for compounding and discharged the applicant for commission of offences under Sections 294, 323 and 506­B of IPC, however declined to discharge the applicant from Section 452 of IPC on the ground that such offence is not compoundable.
Learned counsel for the applicant submitted that the Supreme Court in the case of Abdul Sayeed vs. State of M.P. (2010) 10 SCC 259 has held that in a case where no charge has been framed and the conviction has been arrived at then if it is proved before the court that such error has caused prejudice to the accused then conviction can be set aside. In the instant case, if at the time of framing of charges the Court left out the charge punishable under Section 448 of I.P.C. instead framed charge for offence punishable under Section 452 of the IPC. If the court would have framed charge under Section 448 of the IPC which is compoundable but, on account of error by the learned trial Court the applicant has been convicted under Section 448 of the IPC.
Finally by the impugned judgment dated 07.06.2013 passed in Criminal Case No.13301/2007, whereby the learned Court discharged the applicant for commission of offence under Section 452 of the IPC, however convicted the present applicant for commission of offence under Section 448 of IPC despite the existence of compromise.
Taking a guide from large number of decisions of the Apex Court and various High Courts, it is crystal clear that the inherent powers of the High Court as statutory recognized under Section 482 of Cr.P.C. has no limit, and the same is to be exercised to prevent abuse of process of Court and to secure the ends of justice.
Object of exercise of the power being to prevent abuse of process of Court and to secure the ends of justice, it follows that the ends of justice are always higher.
When parties came to the compromise at earlier stage, which was duly considered and benefit of that compromise was given to the applicant but, charge of Section 452 of the IPC was also there, therefore, trial proceeded further and ultimately learned trial Court discharged the appellant from the charge punishable under Section 452 of the IPC and convicted him under the charge of Section 448 of the IPC.
In these facts and circumstances since the offence punishable under Section 448 of the IPC is compoundable then at the time of compromise the applicant would have discharged from the charge of Section 448 of the IPC also if framed against him. Object of exercising the power under Section 482 of Cr.P.C., being to prevent abuse of process of Court and to secure the ends of justice is squarely applied in this case at hand. Since the matter has been compromised by the parties, at the earlier stage of the trial, therefore, the conviction and sentence directed for the offence punishable under Section 448 of the IPC, vide impugned judgment dated 07.06.2013 in Criminal Case No.13301/2007 by the leaned Judicial Magistrate First Class, Jabalpur is hereby set aside. The applicant is acquitted from the charge of the offence punishable under Section 448 of the IPC.
Amount of fine, if deposited, be refunded.
This application under Section 482 of the Cr.P.C. is accordingly disposed of. ak/
(Subhash Kakade)
Judge