P.K. Tripathy, J.
1. This application Under Section 482 of the Code Criminal Procedure, 1973 (in short the 'Code') has been filed .by the petitioner who is accused in G. R. Case No. 42 of 1996 in the Court of S.D.J.M., Baripada. Application filed by the petitioner with his wife (informant)/opposite party No. 2) to compound the offence Under Section 498A, I.P.C., was turned down by learned S.D.J.M. on May 9, 2000 on the ground that such offence is not compoundable.
Petitioner thus prays to quash the proceeding i.e., G. R. Case No. 42 of 1996 on the ground that in view of the compromise between the petitioner and opposite party No. 2 continuance of the proceeding is an abuse of the process of the Court.
2. Admittedly, petitioner is the husband and opposite party No. 2 (informant in the G.R.Case Case) is his wife and State of Orissa i.e., opposite party No. 1 is the prosecutor. On the basis of the allegations made by opposite party No. 2 regarding demand of dowry and ill-treatment and torture on that account not only the aforesaid case was registered but also after investigation charge- sheet was filed and that is how the petitioner has been called upon to answer to the charge for the offence Under Section 498A, I.P.C. read with Section 4 of the Dowry Prohibition Act, 1961.
3. Contention of the petitioner is that when the relationship between the petitioner and opposite party No. 2 as husband and wife has resumed and returned to normalcy continuance of the said criminal proceeding is not only detrimental to their peaceful conjugal life but also against the interest of justice. He argued that no doubt such offence has not been made 'compoundable as per the provision in Sub-section (1) or (2) of Section 320 of the Code, but notwithstanding that High Court has ample power to grant substantial justice by invoking the inherent power and that is why the criminal proceeding i.e., C.R. Case No. 42 of 1996 be quashed by invoking the provision in Section 482 of the Code. In support of that argument, petitioner places reliance on the case of Subash Chandra Mishra, v. Republic of India and another, 2000 (I) OLR 1.
4. Learned Standing Counsel, on the other hand, argued that the offence which is not compoundable in accordance with the provision in Sub-section (1) or (2) of Section 320 cannot be permitted to be compounded in view of the provisions in Sub-section (9)'of Section 320 and therefore such specific provision of law cannot be subterfuged by invoking the inherent power. He argued that the ratio in that respect is well settled by the Apex Court and the same has also been followed by this Court. He referred to and relied on the cases of Ajaya Kumar Sahu and Ors. v. State of Orissa and another, 2000 (I) OLR 89, (2000) 18 OCR 11, Pradosh Patnaik and four others v. The State and another, (2000) 18 OCR 474, Surendra Nath Mohanty and Anr. v. State of Orissa, (1999) 17 OCR (SC) 25, and Arun Shankar Shukal v. State of Uttar Pradesh and others, (1999) 17 OCR (SC) 414., He further argued that in the case of Subash Chandra Mishra (supra) the above noted decisions of the Apex Court and this Court were not referred to, discussed or distinguished and therefore that ratio cannot be followed in this case.
5. In the case of Subash Chandra Mishra (supra) this Court quashed the criminal proceeding, i.e., S.P.E. Case No. 4 of 1997 involving offences Under Sections 498A and 506, I.P.C. read with Section 4 of the Dowry Prohibition Act, 1961 by invoking the inherent power on the grounds that parties to the said criminal proceeding i.e. the husband (accused) arid the wife (informant) have settled their dispute with the intervention of the well wishers for a decree of divorce, separate living and payment of permanent alimony and therefore no useful purpose would be served by continuing the criminal proceeding. Both the parties prayed for quashing of the criminal proceeding on the ground that the offences for which charge had been framed were non-compoundable in nature. Referring to a series of decisions of this Court and a decision from the apex Court Hon'ble Judge granted the prayer and quashed the criminal proceeding.
6. One of the decisions referred to and relied upon (in the case of Subash) is the case of Nathan Raul v. Subhra Raul vide Order in Special Leave to Appeal (Civil) No. 12303 of 1998. A xerox copy of that order is made available for perusal of this Court. In that case order passed by the Apex Court reads as hereunder :
'Upon hearing counsel the Court made the following :
ORDER
We are happy that the matter has been settled between the parties. The consent terms has been signed by the parties 21.1.2000. The consent terms are also attested by the respective counsel appearing on both sides.
We also take note of the fact that the respondent/ wife of the petitioner agrees to withdraw immediately the criminal complaint case No. 23/95 filed in the Bidanasi Police station, Cuttack and which is registered as G. R. No. 302/95.
However, we do not find that it is necessary that we should quash the F.I.R. It will be open to the parties to approach the appropriate authority/Court for appropriate orders in the light of the settlement. We hope that the needful will be done in that behalf to see that the petitioners and respondent will be able to continue their happy married life.
The SLP is disposed of accordingly.'
The above quoted order leaves no room for doubt that no ratio was laid down for compounding of non-compoundable offences. Even no ratio was propounded that where the offence is not compoundable High Court should quash the Criminal Proceeding by invoking inherent power.
At this stage, it is relevant to refer to the ratio in the case Of Arnit Das v. State of Bihar, AIR 2000 Supreme Court 2264. In that case the issue under consideration was whether the age of the accused on the date of occurrence or on the date of his first appearance/production in the Court shall be taken into account to consider whether such accused is or is not a juvenile delinquent. Petitioner canvassed the contention that the age on the alleged date of occurrence should be taken into account and in support of that, referred to and relied on several reported decisions of the apex Court. After referring to such citations, Honourable Supreme Court propound as follows :
'19. xx xx xx xx xx xxHowever, in none of the cases the specific issue by reference to which date (the date of the offence or the date of production of the person before, the competent authority), the Court shall determine whether the person was a juvenile or not, was neither raised nor decided.'
20. A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to ' have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point of law was not consciously determined. (See State of U. P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, para 41).'
In the said S.L.P. in view of the settlement of the dispute between the spouses, while refusing to quash the F.I.R., the apex Court observed that 'it will be open to the parties to approach the appropriate authority/Court for appropriate order in the light of settlement.' That cannot be read as ratio to quash a criminal proceedings in exercise of inherent power when the offence is not compoundable in nature. On the other hand, the said observation of the apex Court is meaningful in as much as in appropriate cases as per the provision in Section 321 of the Code withdrawal from prosecution is permissible with the consent of the Court and in a case of amicable settlement parties to the compromise can approach the appropriate authority and the Court for proper remedy.
7. Be that as it may, in case of Ram Lal and Anr. v. State of J & K, 1999 Cri.L.J., 1342, persuasion of the appellant to compound the offence Under Section 326, I.P.C. on the ground of amicable settlement was rejected by the apex Court notwithstanding the two previous judgments of the apex Court being cited as precedent. In that context the apex Court thus propound that -
'3. We are unable to follow the said decision as a binding precedent. Section 320 which deals with 'Compounding of offences' provides two Tables therein, one containing descriptions of offences which can be compounded by the person mentioned in it, and the other containing description of offences which can compounded with the permission of the Court by the persons indicated therein. Only such offences are included in the said two table can be compounded and none else. Sub-section (9) of Section 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms :
'(9) No offence shall be compounded except as provided by this section.'4. It is apparent that when the decision in Mahesh Chand (AIR 1988 SC 2111) (supra) was rendered at attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was attention of the learned Judges who rendered the decision in Y. Suresh Babu (1987 (2) JT (SC) 361) (supra) drawn. Hence those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable and hence we cannot accede to the request of the learned counsel to permit the same to be compounded.'
In the case of Surendra Nath Mohanty and Anr. v. State of Orissa, (1999) 17 OCR (SC) 25, the apex Court while adopting the above quoted ratio, have been pleased to hold that-
'For compounding of the offences punishable under the Indian Penal Code, complete scheme is provided Under Section 320 of the Code of Criminal Procedure. 1973. Sub-section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in Column No. 3 of the said table. Further, Sub-section (2) provides that, the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, Sub-section (9) specifically provides that 'no offence shall be compounded except as provided by this Section.' In view of the aforesaid legislative mandate, only the offences which are covered by table 1 or 2 as stated above can be compounded and the rest of the offences punishable under Indian Penal Code could not be compounded.'
Some decisions of the apex Court holding the contrary view were rendered per incuriam.
The above ratio of the apex Court rules the field on that legal issue. Thus, if an offence is not compoundable in accordance with the scheme in the Code as provided in Sub-secs. (1) or (2) in Section 320 of the Code, then it cannot be permitted to be compounded in view of the prohibition contained in Sub-section (9) in Section 320.
8. Since the petitioner does not seek permission to compound the offences but he seeks the relief of quashing of the proceeding on the ground of amicable settlement between the parties, it is to be considered whether that is permissible in the eye of law. In the case of Subash Chandra Mishra [supra] learned Judge referring to and relying on the decision in a series of cases of this Court, viz., Sujata Mohanty v. Debabrata Mohanty (CRMC No. 4828 of 1997, unreported); Susanta Kumar Choudhury v. State of Orissa(CRMCNo. 5614oJ1999, unreported);Raj Kishore Behera v. State of Orissa, (1998) 15 OCR 449; Chandra Sekhar Senapati v. Suneeta Senapati (1998) 15 OCR 587; Bibekananda Das v. Puspanjali Das (CRMC No. 1361 of 2000, unreported); Name withheld v. State of Orissa, 1998 (II) OLR 650; Mohammad Hassan v. Asraf Ali Khan, 1999 (II) OLR 163, has been pleased to record the view that law is well settled that when the dispute between the husband and wife is settled amicably, the criminal proceeding involving non-compoundabe offence should be quashed by invoking the inherent power by adopting that as a means to achieve social justice and harmony. ,
9. On a careful perusal of the above noted decisions of this Court and also the decisions referred to and relied upon, in such cases, it is seen that except the case of Baby alias Sita Kumari Agrawal v. Officer-in-Charge, Purighat Police Station, (1993) 6 OCR 186, which is a Division Bench decision of this Court, the rest of the decisions are Single Bench decisions of this Court. In some of such decisions ratio in the case of Mahesh Chand and Anr. v. State of Raj as than was followed to quash the proceeding applying Section 482 of the Code because of amicable settlement between the parties and the alleged offence being non-compoundable Under Section 320 of the Code. In all the above noted decisions criminal proceedings were ordered to be quashed reiterating the principles of peaceful co-existence between the parties, rendering of social justice and avoiding meaningless criminal trial when it may not achieve conviction of the accused. Undoubtedly the said ratio has a binding effect on this Single Bench. But, if the principles settled and propounded in those cases are expressly or impliedly contrary to the decision of the Apex Court then certainly this Court, as a rule of precedent, is bound to follow and adopt the view from the Apex Court.
10. In the case of Arun Shankar Shukal the Apex Court has held that -
'2. xx xx xx xx xx
xxx xxx. It is true that Under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expressions 'abuse of the process of law' or 'to secure the ends of justice' do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary power to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provisions of the Code, xx xx xx xx .'
The ratio in the above quoted passage precisely prevents invoking of inherent power in matters which are governed or covered by any specific provision in the Code and also in cases where granting the claimed relief by invoking the inherent power would infringe any specific provision of the Code. It appears that the ratio propounded by the Apex Court in the case of Ram Lal (supra), Surendranath Mohanty (supra) and Arun Shankar Shukal (supra) were not brought to the notice of learned Judge while advancing, argument in the case of Subash Chandra Misra (supra).
11. Petitioner's prayer for quashing of the criminal proceeding is because of the Code debarring compounding of the alleged offence. Therefore, affirmative consideration of that prayer shall amount to circumvent, subterfuge and subvert the provision of law in Section 320 of the Code. Apart from that, in a case of present nature even if the offence is not compoundable. yet parties to the proceeding are not left without any remedy. In such cases parties to the Criminal Proceeding can take recourse to Sections 321 or 257 of the Code, as the case may be, seeking for withdrawal of the case. In view of that, the embargo put by the statute and reiterated by the Apex Court makes petitioner's prayer non-entertainable.
Accordingly, the prayer to invoke the inherent power and to quash the G.R.Case No. 42 of 1996 of the Court of S.D.J.M., Baripada stands rejected and the Criminal Misc. Case is dismissed.