This Article proposes to discuss the termination of a legal process in relation to an offence by virtue of settlement or otherwise between the parties to the dispute.
Most of the criminal law in India is contained in the Bhartiya Nyay Sanhita 2023 (BNS) (earlier Indian Penal Code, 1860) and also some of other enactments by the State legislature (for a State) or by the Parliament for the entire territory of India or as specified. Bharitya Nagrik Suraksha Sanhita, 2023 (BNSS) (earlier Code of Criminal Procedure or the Cr. P. C.) is the procedural law for conducting a criminal trial in India and provides for actions to be taken by the police officers, recording of statement, collection of evidence etc. Therefore, under the legal system in INDIA, should a party that has launched proceedings give up its cause for whatever reason or for a cost, the legal system allows this in certain limited circumstance/offences and one may call it a settlement or a compromise in civil law or a compounding in criminal law. If the settlement is with free consent and without coercion and out of a sagacious mindful process, the Courts allow it and draw up the final order and judgment accordingly that binds parties. In criminal cases, settlement is only through strict vigil of the Court given that most criminal cases are considered to be wrongs against public order. Therefore, most criminal cases cannot be settled. When a criminal case can be settled, then under the provisions of the BNSS, its usually termed as a compoundable offence. Criminal cases that are compoundable are also generally compoundable only where the nature of the matter is such that it has caused mostly a private violation of rights. Still, given that the catena of offences are so many that the BNSS lists out the offences which can be compounded rather than leaving it to private settlement.
The criminal cases are of three types i.e. warrant cases (punishment is 7 years or more), summons cases (punishment is upto 2 years) and summary cases (punishment upto 6 months). This paper is not discussing the procedure under each of these kinds of cases but broadly the process that results in culmination of a case. To start with, a criminal case starts before the police by lodgment of an FIR but it can also start with a direct complaint to the magistrate. The case when instituted whether by a police report or otherwise will logically and procedurally have only three consequences.
- The case may be closed by the police if after investigation the police finds that no offence is made out in the facts alleged by an aggrieved party (the aggrieved party may challenge the report of the police).
- The police may find a prima facie offence and will then place the matter before the Court with a chargesheet. The court may, upon hearing the parties as to the charge, observe that there is no prima facie case and thus there is no charge framed. This is called discharge. Note that at this stage the court does not delve into guilt or innocence but as there are no grounds to proceed further basis the documents produced by the prosecution, the court records a discharge. For a commoner, this is as good as acquittal.
- If the court finds that charges are made out or the Court strikes out or adds or alters the charges, then charges are framed, and the accused will be asked if he / she pleads guilty or not guilty. The accused usually pleads not guilty and claims trial. After trial, the case will either result in a conviction or acquittal based on a finding by the Court about guilt or innocence.
Thus, once the criminal law machinery is set into motion, we can see that the case would reach conclusion in one of the above three ways i.e., police closure report subject to court's approval, discharge by court before trial, acquittal or conviction by the court resulting in final judgement. After acquittal, the court delivers a sentence on quantum of punishment.
Having understood this so far, we will now understand other modes of putting an end to criminal cases. If the accused is not discharged or acquitted and trial proceeds, then the accused can have an option (not a vested right though) to seek a settlement of the dispute provided the complainant or the prosecution agrees to the same. This can happen either in one of following ways:
- Compounding u/s 359 of the BNSS
- Quashing/partial quashing u/s 528 of the BNSS
- Withdrawal from prosecution u/s 360 of the BNSS with the leave of the Court and with permission of Central government in appropriate cases. An opportunity of hearing to the victim is to be given.
- Plea bargaining under Chapter XXIII (Sections 289-297) of the BNSS under the supervision of the Court and approval of the accused and victim in a crime subject to strict norms.
This Article discusses the first two i.e., compounding and quashing.
COMPOUNDING
Compounding of an offence is a mechanism whereby an accused or a convict (during an appeal) may be set free of legal consequences by affording him with an opportunity to strike an agreement with the aggrieved person to escape punishment and the court affords its seal of approval to the same. Whilst compounding is a statute-based mechanism where an offence can be compounded by the aggrieved person, the Code sets out under Section 320 (Section 359 of the BNSS) which of the offence under the IPC (now BNS) can be compounded. There are certain offences that are compoundable if the aggrieved person accords consent whereas there are certain offences which are compoundable only with the leave of the court in addition. However, in both cases, the consent of the aggrieved person is a must. If a person has already been convicted and an appeal or revision is pending, then the leave of the revisional or appellate court would be necessary.
The offence can be compounded by the person who had filed the complain and it can be withdrawn by the complainant/aggrieved person. Some of the offences which are compoundable under the Indian law are as. Some of the offences which can be compoundable under Section320 of CrPC (Section 359 of BNSS) are Assault and Hurt [Section 323 to 338 of IPC- Section 115 to 125 of BNS], Wrongful restraint and Wrongful Confinement [Section 341 and 342 of IPC- Section 126(2), 127(2) of the BNS], Criminal trespass [Section 447 and 448 of IPC- Section 329(3) & 329 (4) of BNS], Theft [Section 379 of IPC- Section 303 (2) of BNS], Mischief [Section 426 and 427 of IPC- Section 324(2) & 324 (4) of BNS], Criminal breach of trust [Section 406 of IPC- Section 316(2) of BNS], Adultery (Section 497 of IPC- is removed from Section 359 of BNSS), Defamation [Section 499 and 500 of IPC- Section 356(2) of BNS], Criminal intimidation and insult [Section 503 and 504 of IPC- Section 351(2), 351(3) of BNS, Insult with intent to provoke a breach of peace (Section 504 of IPC), Criminal conspiracy (Section 120B of IPC) where the offence is the subject matter of the conspiracy is compoundable, Negligent acts causing harm (Section 338 of IPC), Marriage-related offences (under the provisions of IPC section 498A, when the parties reaches to a compromise and as well as the court does not object the same it may be compoundable). In cases where the offences are compounded under Section 320 of CrPC (Section 359 of BNSS) it effectively results in the acquittal of the accused in that case.
QUASHING
If an offence is not compoundable, then a criminal proceeding resulting from such offence could be quashed by the jurisdictional High Court exercising its inherent powers u/ 482 of the Code (Section528 of BNSS). This power under the Code is exercisable only by the High Court to prevent abuse of the process of the court or to secure the ends of justice. Thus, a criminal proceeding cannot be quashed by the Court of Magistrate or the Sessions Court. The general rule to be understood is that whilst the compoundable offences are well defined under the Code and thus compoundable easily (if the complainant agrees), for settlement of disputes which are not compoundable, it is not that easy, and this is what we will discuss herein.
In case of a non-compoundable offence, the remedy available is under Section 482 of CrPC (Section 528 of BNSS) for the quashing of FIR or the entire proceedings before the concerned court where it should not be related to heinous crimes. Before we delve further, one rationale must be kept in mind is that generally in India, all criminal prosecutions are prosecuted by the State (exceptions are few and far between such as those under the provisions of Section 138 of the Negotiable Instruments Act) as it is the social philosophy in India that crimes constitute a public wrong and not a personal wrong and wherever public interest in involved, the State is the repository of such interest to defend or speak for. Therefore, one can make out that even for compounding under the Code only crimes that cause personal injury are only identified under the Code for compounding. Yet, crimes/offence that not listed for compounding under the Code or any other special law can still be quashed if the High Court has reason to believe that it will secure an end to justice or prevent abuse of malicious prosecution but such crimes must not be heinous crimes such as to shock the society or conscience of the Court. For example, crimes related to domestic violence are non-compoundable offences, but the proceedings/FIR can be quashed under the inherent powers of court under Section 482 of CrPC (Section 528 of BNSS) whereas the crimes which may affect the society at large for example murder, or rape or rioting etc cannot be compounded. Recently the Hon'ble Supreme court in the matter of Daxaben V. The State of Gujrat & Ors., SLP Criminal No.1132-1155 of 2022 decided on 29.07.2022 that"38. However, before exercising its power under Section 482 of the Cr.P.C. to quash an FIR, criminal complaint and/or criminal proceedings, the High Court, as observed above, has to be circumspect and have due regard to the nature and gravity of the offence. Heinous or serious crimes, which are not private in nature and have a serious impact on society cannot be quashed on the basis of a compromise between the offender and the complainant and/or the victim. Crimes like murder, rape, burglary, dacoity even abetment to commit suicide are neither private nor civil in nature. Such crimes are against the society. In no circumstances can prosecution be quashed on compromise, when the offence is serious and grave and falls within the ambit of crime against society.".
Thus, we can notice that offences that are not compoundable could still be stopped from further proceedings by way of an order under section 482 of the Code (Section 528 of BNSS) provided that the offences are of such nature so as ensure that there is no offence to the public at large or public interest in not jeopardized and the complainant is also satiated.
PARTIAL QUASHING
Partial quashing can be set to be a subset of quashing itself. Just as the High Court may quash a criminal proceeding for reasons explained above, it is possible that the High Court may quash the proceedings against one or more of the accused persons when prima facie there is no case made out against them. Therefore, quashing of an FIR or a criminal proceeding before a Court against a particular accused is possible.
The power to quash an FIR partially is derived from the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) (Section 528 of BNSS). But the exercise of such powers is done sparingly and only in exceptional circumstances, some of the situations where in the court may consider partially quashing a FIR are:
- If the court finds out that there is no prima facie case against a particular or one of the accused in the FIR, the FIR against that particular accused may be quashed while the proceedings against the others will continue.
- If the court finds out that the FIR has been filed with mala fide intentions or as a tool for harassment against an individual, the FIR may be quashed partially to protect the right and interest of the accused.
- In case if the parties involved in the case have come to a settlement or compromise and are willing to withdrew the case against certain accused, the court may partially quash the FIR with respect to those accused.
- In case the Fir contains allegations, which are minor or non-cognizable offences, the court may consider the quashing those specific allegations while allowing the case to proceed for further serious offences.
- In case the offence has taken place in an area outside the jurisdiction of the police station where the FIR is registered, the court may quash the FIR.
- In case the FIR or investigation of a case violates the fundamental rights of an accused, such as the right to personal liberty or dignity, the court may consider in partial quashing of the FIR.
It is also to be noted that partial quashing is only applicable to cases where there more than one accused in an FIR. One of the important aspects of which is involved in partial quashing of a FIR depends upon the discretion of the High Court depending upon the facts and circumstance of the case as well as the legal aspects and the principles of justice and fairness before making a decision in such matters where the interference of the judicial system is required.
The FIR is partially quashed against one of the accused while the proceedings against the others will continue, can only done on the basis of a clear distinction made out of offences against accused persons. In simple terms unless and until the court is able to distinct the offences against each accused in the process of evaluation the FIR may be partially quashed, it has to fully quashed due to the reason that both the accused has done the same offence and one of them have settled the matter with the complainant then in that case the offence is same, and it doesn't matter whether the settlement had been made by both or by one of the accused. However, the judicial precedents in this regard are not very clear. In such situations the court sees the facts and circumstances of the case and also evaluate the offences whether it is individual or is it in the interest of law to allow the trial court to continue or not with the proceedings against the other accused as the matter has been settled for the offences as it is compoundable and there aren't any other distinct offences.
In Kapil Agarwal & Ors Vs Sanjay Sharma & Others ((2021) 5 SCC 524) the Hon'ble High Court of Delhi observed that Section 482 of the Cr.P.C. is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment. Hence if the complainants grievances are settled or fulfilled then in that case there is no point in going further with the litigation, in such cases the FIR can be quashed and the matter maybe dismissed but it all depends upon the facts and circumstances of the case which may vary from case to case hence a fixed condition cannot be arrived in terms of quashing of FIR for offences which are compoundable.
Hon'ble the Supreme Court in the case of B.S. Joshi v. State of Haryana reported as 2003(2) R.C.R. (Criminal) 888 while relying on the judgment titled as Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749], that this Court with reference to Bhajan Lal' case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formula to be followed by the court. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary of exercise utmost care and caution while invoking such powers.
In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1998) 1 SCC 692] it was held that while exercising inherent powers of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit prosecution to continue. Where, in the opinion of the court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.
In the matter Poonam Khanna vs State & Ors in Crl.M.C.No 3690/2016 dated 30.01.2018 the court held that partial quashing of FIR qua the accused with whom the complainant has settled or compromised the matter can be allowed and while quashing, it must be appreciated that the accused cannot be allowed to suffer based on a complaint filed by the respondent.
In Lovely Salhotra and Anr. vs. State, NCT of Delhi (2017 SCC Online SC 636), in paragraph 4 and 7, it is observed and held as under: "4. We have taken into account the fact of the matter in question as it appears to us that no cognizable offence is made out against the appellant-herein. The High Court was wrong in holding that the F.I.R. cannot be quashed in part and it ought to have appreciated the fact that the appellants-herein cannot be allowed to suffer on the basis of the complaint filed by Respondent No.2 herein only on the ground that the investigation against co-accused is still pending. It is pertinent to note that the learned Magistrate has opined that no offence is made out against co- accused Nos.2, 3, 4 and 6 prima facie.
In Vijay Kumar Gupta V. State, Government of NCT of Delhi in Crl.M.C. No.2289/2013 Dated 09.03.2017, in paragraph 7, it is observed and held as under: "7. Looking into the facts and circumstances of the case and the fact that the petitioners have paid the loan/settlement amount to the Respondent No.2 and nothing remains to be adjudicated further, to remove the hurdle in the personal life of the present petitioners for leading better and peaceful life and to meet the ends of justice, I deem it appropriate to quash the FIR No.107/2003, under Section 406/420/468/471 Indian Penal Code, 1860,registered at Police Station Parliament Street, Delhi qua against the petitioners, namely Vijay Kumar Gupta, Raj Kumar Sharma and Vinod Chaudhary only to the extent of their role in commission of the alleged offence."
The Hon'ble high court of Delhi in the matter of Sunil Tomar vs The State of NCT of Delhi & ANR (CRL.M.C 1741/2021 judgment dated 12.04.2022) held that since the matter has been amicably settled between the parties, no useful purpose will be served by keeping the case pending. It will be nothing but abuse of the purpose of law. Hence the proceedings/FIR against accused/respondent no 2 was quashed due to the reason the offences were in private in nature and the complainant had already come in to a settlement between respondent no2 in this matter in the view of various judgments of the appellant court. Hence it is assumed that partial quashing of FIR is applicable only qua the complainant with whom the complainant has compromised or settled the matter can be allowed in light of the mentioned judgment.
Section 257 of the Code (Section 280 of BNSS) is noteworthy as it reads as following "Withdrawal of complaint. If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn"
Thus, a partial withdrawal of a complaint is not unbeknownst to the Code yet cases of complaint before magistrate are more or less private wrongs therefore the statutory provision in the Code would not afford much remedy but it does throw light on the fact that a withdrawal being partial is a possibility.
COMPOUNDING WITHOUT APPROVAL OF THE COMPLAINANT
As we notice that compounding of an offence is permitted u/s 320 of the Code (Section 359 of BNSS) is only when the person aggrieved agrees to such compounding. Therefore, questions have arisen before the Courts as to instances when the Court could compound an offence even without the consent of the aggrieved person. Two noteworthy cases in this context are to found under the Negotiable Instrument Act wherein Section 147 makes all offences under this Act compoundable by reading "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable]"
In 2012, a two judge bench of Hon'ble Supreme Court a view in the matters of JIK Industries Limited vs Amarlal V.Jumani (2012) 3 SCC 255 that compounding offences under Negotiable Instruments Act and quashing of FIR or proceedings against the accused, consent/knowledge of the complainant is sacrosanct. However, later in 2017, another two judge bench of the Supreme Court in M/s Meters and Instruments Pvt. Ltd. & ANR. Vs. Kanchan Mehta. [Criminal Appeal No. 1731 of 2017, (2018) 1 SCC 560] had ruled that though compounding requires consent of both parties, even in absence of such consent, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused in matters of offences made under Section 138 of Negotiable Instruments Act. The Court whilst making this observation relied on Section 147 of the Code where the words notwithstanding are used to make a departure that unlike the Code u/s 320 which mandates willingness of aggrieved party, the Section 147 does not state so.
Hence this part of law whether consent of complainant is required awaits clarification and yet to be decided by a larger bench of Supreme court, till the time the accused will have to acquire consent from the complainant for quashing of FIR/legal proceedings against him to be on the safer side.
However, the Hon'ble Alld HC bench of Justice Jyotsna Sharma observed as to 2017 ruling of the Supreme Court in M/s Meters and Instruments Private Limited and Another vs. Kanchan Mehta wherein the top Court had observed that an accused in a case under Section 138 of NI Act can be discharged even without the consent of the complainant if the Court is satisfied that the complainant has been duly compensated. Thus, the Allahabad attempted to strike a balance between the 2012 and 2017 judgment of the Supreme Court.
In a Criminal case, it's clear that in reliance with various judgments the judicial system had clearly state that partial quashing of a FIR can be done with offences which are compoundable in nature, but it also depends upon the facts and circumstance of the case to case. But at present various court have ruled on partial quashing of FIR for offences which are compoundable in nature does not specify what are its effect in terms of the circumstances where there are more than two accused and one of them have come into settlement with the complainant in such cases the courts have to see whether the complainant have been fulfilled and depending upon the facts and circumstances of the case if it comes to a point where it find outs that the other accused are also innocent or only if one of them is liable of the offences the court can quash the FIR against them, but it also depends on the consent/ knowledge of the complainant before deciding in such matters. To avoid unnecessary litigation against parties who are innocent or who are willing to settle the matter, the courts use its inherent powers under Section 482 of CrPC (Section 528 of the Code) to partially quash FIR against the accused who has come into a settlement with the complainant for offences which are compoundable in the eyes of law. But there are certain portion on which there has been no clear judicial settlement have been made, that if offence against the any one of accused is settlement, then in that case if there aren't any other offences claimed against the other accused then the matter is liable to be quashed. But if there is a distinction between the offences committed in the same case then the accused who have come in to settlement with the complainant can only seek for quashing and the offences against the others will continue with the legal proceedings. Hence it can be said that the offences which can be compoundable under the provisions of law the accused/petitioners can seek relief in terms of partial quashing of FIR against them and avoid unnecessary litigation/ legal proceedings and also save the time of courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
