Three words, as Black’s Law Dictionary explains, would be essential to define for they assume heightened significance during the course of the article.
Incarceration- Imprisonment or even confinement in a jail or penitentiary, the latter being the North American connotation of a place where persons are confined for committing serious crimes.
Compromise– An arrangement arrived at, either in Court or out of Court, for settling a dispute upon what appears to the parties to be equitable terms, having regard to the uncertainty they are in regarding the facts, or the law and the facts together.
Discretion– Power or privilege of the Court to act unhampered by legal rule. Additionally, judicial discretion means discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained.
As soon as a crime comes to light, law is set in motion. Tempers run high. ‘Retribution’ becomes the buzz word. Lawyers grasp years old digests from their bookshelves which now find a place right on their work desk, dusted and wiped. The victim or his kin fear to approach the police at first, but the thought of being in a utopian world where it is believed that justice is quick, accessible and attainable crosses their mind and they decide to lodge a complaint/FIR. The accused is looking for shelter, hurtling helter-skelter trying his best to evade the law. Meanwhile, his quest for finding the best attorney who can save him from the mayhem also continues.
In all of this, while both sides are hustling, hopping from court to court, attending hearings and awaiting fair play, suddenly they come to realize that it has been long since the pandemonium started. Hearings have continued for long. The victim feels his sufferings are aggravating and the final decision is not in sight anytime soon. The accused is tired of running from the law and when he is caught, he is tired of spending time behind bars awaiting his exoneration, his tenure in prison lying carefully on the bedrock of his lawyer’s assurances. Even the lawyers now begin to go easy on the case for new cases are now filling their desks. Those case files that once assumed a dominant position on their desk are now accumulating dust for they are victims of frequent adjournments.
At this stage, the parties decide to settle. They compromise the matter thinking it is best to settle on mutual terms so that both parties can part ways and begin afresh.
Most term a compromise as discontinuation of long drawn litigation for they are imbued with hope that curtains will be drawn over matters in which the parties have arrived at a suitable arrangement, amicably.
Generally, accused persons are quick to settle for an arrangement to end disputes or even alleged disputes, for incarceration may mean ignominy, even though for victims of crime, it may mean vengeance. For an undertrial however, it would, besides being a travesty of justice, be a situation where he would be constrained to remain confined within the four walls of a dingy cell even though the victim has granted his/her stamp of approval for his discharge from criminal proceedings.
The discomfiture that accompanies arrest, be it at the pre-conviction stage or post-conviction stage cannot be turned a blind eye to. A great deal of humiliation, ignominy and even disgrace is associated with arrest. In fact, it is indubitable that arrest of a person may result in serious consequences not only for the accused but even for the kin and sometimes even for the entire community to which such person belongs. Truth be told, a lot many sections of the society hardly carve out a distinction between pre-conviction arrest and arrest post conviction.
Liberty from incarceration is a matter of discretion for a Court of Law. These Courts exercise judicial discretion while quashing criminal proceedings, as the law rests on the sound belief that those who decide such cases base their decisions on sound foundations of law. It may be added that discretion, if unbridled, can result in grave consequences. The key to achieve ends of justice is that judicial discretion must be reasonably guided by judicial principles. Relief, when being granted by a Court, must be granted or withheld in the facts and circumstances of every matter, for a straitjacket formula would tend to do more harm than good.
There is no gainsaying that a lot of progress has been made in the domain of quashing criminal proceedings pursuant to a compromise, so much so that Courts have deemed it apposite to quash proceedings arising out of even those offences that are not expressly permissible under law, more particularly under Section 320 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’). Precedents even lay down the kind of offences that ought to be considered for quashing and those that may not warrant cancellation, specifically the ones that are considered as crimes against the society or those that are grave and heinous. This progress has indeed turned the approach of our criminal justice system to expedite disposal of cases for even a day’s delay can be understood to mean a day’s lack of progress.
Nonetheless, a sizeable amount of clarity is required on other factors that ought to weigh in while quashing criminal proceedings against an accused. These may range from the number of pending cases against him to the quantum of punishment involved in previous convictions, if any; the impact of heinous offences already committed or alleged to be committed by an accused on the quashing of proceedings for somewhat less heinous offences, etc. These factors, if outlined, can markedly help in exercise of discretion, deciding whether incarceration is warranted after a compromise has been entered into.
Mention of a few judgments confirming the scope of the quashing criminal proceedings might be fruitful.
A Full Bench of the Hon’ble High Court of Punjab and Haryana rendered a much acclaimed decision in the matter titled Kulwinder Singh and Others vs. State of Punjab, 2007 (3) RCR (Criminal) 1052, wherein, the Court, while revisiting the scope of Section 482 of Cr.P.C. and reaffirming its powers therein, laid down certain categories of cases by way of illustration wherein the extraordinary power of the Court either under Article 226 of the Constitution of India or the inherent powers under Section 482 of Cr.P.C. could be exercised so as to, inter alia, prevent the abuse of power and secure the ends of justice. It also, most significantly, even held that the power under Section 482 was notwithstanding any other provision in Cr.P.C. The Court, while making observations held that the settlement or compromise on the basis of which quashing of criminal proceedings are sought, must satisfy the conscience of the Court. However, there was little observation with respect to the factors which must be kept in mind while quashing criminal proceedings pursuant to a compromise, apart from only delineating the list of offences qualified to be quashed.
Adverting to further precedents, another judgment rendered by a Full Bench of the Hon’ble Supreme Court in Gian Singh vs. State of Punjab, (2012) 10 SCC 303; dissected Section 482 of Cr.P.C. and upheld three of its previous decisions of quashing FIRs, namely:
• B.S. Joshi and Others vs. State of Haryana and Another; 2003 (2) RCR (Criminal) 888: This was a case of matrimonial discord wherein an FIR was registered under Section 498-A, 323 and 406 of the Indian Penal Code (‘IPC’) at the instance of the wife. Consequently, the matter stood settled on the basis of a compromise. Even though the High Court refused to quash the FIR on the ground that the offences were non-compoundable, the Apex Court quashed the FIR on the reasoning that the High Court, in exercise of its inherent powers, could quash the FIR and Section 320 of the Cr.P.C. did not limit or affect the powers under Section 482 of the Code.
• Nikhil Merchant vs. Central Bureau of Investigation and Another; (2008) 9 SCC 677: In this matter involving default in repayment of loans, the bank proceeded to file a suit for recovery and even a complaint against the erring company under various provisions of the law. Be that as it may, the matter came to be settled upon consensual terms and the suit was withdrawn. The Hon’ble Supreme Court, setting aside the order of the Bombay High Court, proceeded to quash the criminal complaint against the accused in the case for it held that the dispute involved there displayed overtones of a dispute of civil nature having criminal facets and as such, it was a fit case where technicality should not be allowed to stand in the way of quashing criminal proceedings.
• Manoj Sharma vs. State and Others; (2008) 16 SCC 1: In this matter, the Apex Court was concerned with the question whether FIR under certain sections of the IPC which were otherwise non compoundable could be quashed either under Section 482 of the Cr.P.C. or under Article 226 of the Constitution of India. The Hon’ble Court proceeded to hold that continuation of criminal proceedings would be an exercise in futility and resultantly, quashed the same.
Again, even in Gian Singh’s case (supra), there was little discussion on other factors that could affect the decision of quashing criminal proceedings on the basis of a compromise other than discussing the type of offences that were outside the ambit of Section 320 of the Cr.P.C. though could be compounded.
This leaves a pertinent question ticking in the minds of advocates and legal aficionados alike- does discretionary power to rescind criminal proceedings offers wide powers to do so even when the accused is, amongst other factors, undergoing trial in other criminal cases and/or is a habitual offender and/or has a past record of committing crime? How far is past conduct helpful in quashing a particular criminal proceeding which already stands compromised?
It is firmly established that no offence can be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence. Barring such exception, a previously pending case or even past convictions should not come in the way of quashing criminal proceedings, especially when at the core of our criminal jurisprudence lies a simple yet concretised principle i.e. bail is the rule, jail is the exception.
Mention at this stage may be made of a case titled The State of Madhya Pradesh vs. Dhruv Gurjar and Another, (2019) 5 SCC 570; wherein the Apex Court held that the antecedents of the accused is a serious consideration while quashing criminal proceedings, even on the basis of compromise. The Hon’ble Court held that in the event when parties to a criminal proceeding have settled the manner pursuant thereto, a quashing petition is filed, the twin guiding factors in such cases would be to either secure the ends of justice or so as to prevent the abuse of process of Court. Where in this case the Court was dealing with a matter where serious offences such as Section 307 of the IPC were involved and was deciding the validity of an order quashing criminal proceedings based on a compromise, the Hon’ble Supreme Court set aside such Order and held that in a case where the accused had a past record of criminal proceedings against them, the Courts, in this case the High Court, ought to have been more vigilant and ought to have considered relevant facts and circumstances under which the accused got the settlement entered into.
A Three-Judge Bench of the Hon’ble Supreme Court in The State of Madhya Pradesh vs. Laxmi Narayan and Others, (2019) 5 SCC 688; while dealing with the question of quashing criminal disputes pursuant to a compromise between the parties, observed, inter alia, thatwhile exercising the power under Section 482 of the Code to quash criminal proceedings in respect of non-compoundable offences which are private in nature and do not have a serious impact on society on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.
In both Dhruv Gurjar’s case and Laxmi Narayan’s case (supra), some amount of observations with respect to the importance of the antecedents of the accused were made, though no detailed guidelines in that regard were issued.
Be that as it may, frequent delays in compromised matters to find details of previously continuing and/or completed proceedings against the accused on a tepid belief that such details will undermine the compromise are not only prejudicial to the right of the accused but also cause undue harassment to the victim whose entire idea behind compromising the dispute was to put an end to continuous litigation.
Except crimes of heinous nature, crimes that are compromised on the basis of settlement that satisfies the conscience of the Court ought to be compromised without placing substantive reliance on antecedents of the accused, especially when the same would have no bearing on that particular criminal proceeding that forms the basis of consideration for the Court for the purpose of quashing.
Suffice it to say, the quashing of one criminal proceeding pursuant to a settlement would neither disrupt the course of trial in other cases nor would it prejudice the same. In fact, such action would be in the interest of parties and would go a long way in bringing litigation to an end.
Quashing criminal proceedings upon a compromise also becomes essential in light of the country’s unchanged condition of prisons. A country that took years to cast off the British Raj so it could function independently still has a statute as old as 1894 guiding the administration of prisons- Prisons Act. Frequent tortures faced by undertrial people at the hands of powerful men dominating prisons, custodial deaths, mental traumas and even occasional disappearance of people from prisons for reasons mostly mysterious are some of the features of prisons. In such a case, for an accused to carry on being in jail at a time when the victim is hasty to compromise the case not only appears to be a infringement of the rights of the accused envisaged in the Constitution of India but is also seemingly miscarriage of justice, if nothing more.
Even it is to be viewed from the perception of the victim, it would be of little concern to him even if previous cases are pending against the accused or if the accused has been previously convicted, as for the victim, the purpose behind settlement is to make himself scarce from the labyrinth of ongoing proceedings. Given the frequent deferment in long ongoing trials, the victim does not wish to now become a party to a convoluted system where application(s), appeal(s) and revision(s) continue to slow down the trial further exacerbating his woes. He would, in such a situation, find ways to work out a resolution with the accused so that he may leave his past behind and advance ahead towards better avenues and brighter paths.
Absence of interference of the Courts in such cases would involve the parties tending to play tricks upon the Courts thus ensuring that the accused is acquitted by subverting the administration of criminal justice. Such a conduct would never be in the interest of justice and as such, quashing on the basis of compromise would be warranted ex debito justitiae.
Among the numerous judgments underscoring the powers of the Court under Section 482, only a few indicate that previous conduct/pending cases have a bearing while quashing criminal proceedings on the basis of settlement.
However, the question of gravity of such impact and whether such considerations can have a decisive impact while allowing a compromise is a subject on which much needs to be debated upon, especially deeply probing issues such as the number of pending cases that decide the course of decision, the nature of previous convictions, the conduct of the accused while being in incarceration for other cases, pending or otherwise, etc. When such inquiries are answered, discretion is expected to become well balanced. Advocates would then have definitive provisions of law to cite and concrete decisions to rely upon while approaching the Court in the hope that incarceration of accused persons is truncated and justice intertwines with law.
Among the numerous judgements underscoring the powers of the court under Section 482, only a few indicate that previous conduct/pending cases have a bearing while quashing criminal proceedings on the basis of settlement. However, the question of gravity of such impact and whether such considerations can have a decisive impact while allowing a compromise is a subject on which much needs to be debated upon, especially deeply probing issues such as the number of pending cases that decide the course of decision, the nature of previous convictions, the conduct of the accused while being in incarceration for other cases, pending or otherwise, etc.