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          REPORTABLE IN THE SUPREME COURT OF INDIA     

 CRIMINAL APPELLATE JURISDICTION  CRIMINAL   APPEAL No.445 OF 2016

(Arising out of SLP(Crl.)No.3821 of 2010)

J.RAMESH KAMATH & ORS.                            .......APPELLANTS

VERSUS

MOHANA KURUP & ORS.                              .......RESPONDENTS                                                    

J U D G M E N T JAGDISH SINGH KHEHAR, J.

1. Leave granted.                      

2. Respondents nos.4 to 7 herein describing themselves as members  of  the  All  Kerala  Chemists  and  Druggists  Association (hereinafter referred to as `the Association’), filed a written complaint  to  the  City  Police  Commissioner,  Ernakulam  against respondent  nos.1  to  3.  Respondent  No.1  –  Mohana  Kurup  was  the President of the Association during the relevant period from 2004 to  2006  and  thereafter  from  2006  to  2008.   Respondent  No.2  – Raveendran was the Secretary of the Association during the same period,  and  respondent  no.3  –  Sayed  was  the  Treasurer  of  the Association during the relevant period.  It was alleged in the complaint filed by respondent nos.4 to 7, that respondent nos.1 to 3,  in  furtherance  of  a  criminal  conspiracy,  and  with  common

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intention,  misappropriated  huge  amounts  of  funds  of  `the Association', by misusing their position as office bearers of `the Association'. On the basis of the complaint preferred by respondent nos.4 to 7, First Information Report bearing Crime No.675/2008 was registered at Central Police Station, Ernakulam. 3. Appellant No.2 in the present appeal – Giri Nair (also claiming to be an active member of the Association), likewise filed a complaint before the City Police Commissioner, Ernakulam, making similar allegations against respondent nos.1 to 3.   4. The police filed a final report before the Chief Judicial Magistrate,  Ernakulam,  on  22.03.2009,  based  on  an  affirmation during investigation, for offences under Sections 406, 408, 409, 477A and 120B of the Indian Penal Code. Needless to mention, that the aforesaid chargesheet was based on the complaint addressed by respondents nos.4 to 7 on 09.04.2008, and not the complaint made by the appellants before this Court.   5. Dissatisfied with the initiation of action against them, respondent nos.1 to 3 filed Criminal M.C.No.4154 of 2009 before the High Court of Kerala (hereinafter referred to as `the High Court’) under  Section  482  of  the  Criminal  Procedure  Code  praying  for quashing of the final report (filed by the police in C.C.No.90 of 2009,  on  the  file  of  the  Chief  Judicial  Magistrate,  Ernakulam arising out of Crime No.675/2008). The case projected by respondent nos.1  to  3  before  the  High  Court  was,  that  the  allegations contained in the complaint dated 09.04.2008 were in the nature of a private dispute, and was of a purely personal nature, without any involvement of public policy, and as such, the matter could be

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settled between the parties through an amicable settlement. And that, it had been so settled.   6. Along with the aforesaid Criminal M.C.No.4154 of 2009, respondent nos.1 to 9 filed a joint petition seeking compounding under Section 320 of the Criminal Procedure Code. At this juncture, it would be relevant to mention, that respondent nos.4 to 7 were the original complainants on whose complaint, the case came to be registered against respondent nos.1 to 3.  Respondent nos.8 and 9 herein,  were  the  General  Secretary  and  Treasurer  of  `the Association', at the time when Criminal M.C.No.4154/2009 was filed. 7. According to the assertions made before this Court, the High Court was informed, that the matter had been settled between the  parties,  and  that,  no  useful  purpose  would  be  served  in continuing the prosecution.  The High Court, in the above view of the matter, passed the impugned order dated 22.12.2009, whereby, proceedings in CC No.90/2009, pending before the Chief Judicial Magistrate, Ernakulam, were quashed. Paragraph 2 of the impugned order is extracted  herein:-

“2.  A compounding petition is filed jointly by the petitioners  and  respondents  1  to  6  stating  that entire disputes were settled with the petitioners, who were the former office bearers and respondents 1 to 4, the complainants and respondents 5 and 6, the present office bearers and respondents 1 to 4 admit that there was no misappropriation of the amounts of AKCDA as alleged and respondents 5 and 6 agreed the same.  In view of the settlement, it is contended that  they  may  be  permitted  to  compound  the offences.”   

         (emphasis is ours)

A  perusal  of  paragraph  2  extracted  above,  reveals,  that  the

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complainants  (namely,  respondent  nos.  4  to  7  herein)  and  the accused (namely, respondent nos.1 to 3 herein) had admitted, that there was no misappropriation of the amounts of the Association, and respondents nos.8 and 9 herein, who were the General Secretary and Treasurer (were impleaded in the joint petition as respondent Nos.5 and 6) endorsed the above position. 8. Paragraph  5  of  the  impugned  order,  is  also  being extracted hereunder:

“5. Prosecution case as against the petitioners is that they committed the offences as against AKCDA and its members. The allegation is that they opened two separate accounts  and converted  the cheques  and demand  drafts received in the name of AKCDA to their personal accounts and thereby misappropriated the amounts.  The offences alleged are purely personal in nature as against the Association, represented by respondents 5 and 6.  The case  was  investigated  on  the  complaint  filed  by respondents 1 to 4.  When compounding petition filed by the  petitioners  along  with  respondents  1  to  6 establishes that there has been a complete settlement of the  disputes  and  the  offences  alleged  are  purely personal in nature, as held by the Apex court in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19) it is not  in  the  interest  of  justice  to  continue  the prosecution. In  the  light  of  the  settlement  and  the joint  petition  filed,  even  if  petitioners  are  to  be tried,  there  is  no  likelihood  of  a  successful prosecution. In such circumstances, it is not in the interest of justice to continue the prosecution.    Petition is allowed. C.C.No.90/2009 on the file of Chief Judicial Magistrate’s Court, Ernakulam is quashed.”

   (emphasis is ours) A perusal of paragraph 5 of the impugned order reveals, that the acknowledged  position  between  the  parties  (the  accused,  the complainants, and the office bearers of `the Association') which was projected before the High Court was, that the offences alleged in the complaint were purely personal in nature. 9. Premised  on  the  acknowledged  admitted  position,  that

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there  was  no  misappropriation,  as  well  as,  the  fact  that  the offences alleged in the complaint were purely personal in nature, the High Court agreed with the settlement between the parties, and quashed the proceedings in CC No.90/2009. 10. It  is  also  imperative  for  us  to  notice,  that  in  the compounding  petition,  which  was  filed  by  respondent  nos.1  to  3 herein (the accused), as petitioners impleaded respondents nos.4 to 7 herein (the complainants), and respondent nos.8 and 9 (the then General Secretary and Treasurer of `the Association') herein. A clear  and  categorical  stance  was  adopted  in  the  compounding petition, that there was no misappropriation of the funds of the Association,  and  that,  not  only  the  complainants,  but  also respondent nos.8 and 9 herein, namely, the General Secretary and the Treasurer of the Association, confirmed the above position.   11. The first contention advanced at the hands of the learned counsel for the appellants was, that the respondents-accused have been charged of offences under Sections 406, 408, 409, 477A and 120B of the Indian Penal Code. It was the pointed contention of the learned counsel for the appellants, that most of the provisions under  which  the  accused-respondents  had  been  charged,  were non-compoundable under Section 320 of the Criminal Procedure Code. And as such, the matter could not have been compounded. 12. Whilst it is not disputed at the hands of the learned counsel for respondent nos.1 and 2, that most of the offences under which the accused were charged are non-compoundable, yet it was asserted,  that  the  jurisdiction  invoked  by  the  High Court in

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quashing the criminal proceedings against respondent nos.1 to 3, was not under Section 320 of the Criminal Procedure Code, but was under Section 482 of the Criminal Procedure Code, as interpreted by this Court. 13. Insofar as the decisions of this Court are concerned, reference, in the first instance, was made to Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582, wherefrom, our attention was invited to the following observations:

“5. It is on the basis of this compromise that the application was filed in the High Court for quashing of  proceedings  which  has  been  dismissed  by  the impugned order.  We notice from a reading of the FIR and the other documents on record that the dispute was  purely  a  personal  one  between  two  contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no  public  policy  involved  in  the  nature  of  the allegations  made  against  the  accused. We  are, therefore,  of  the  opinion  that  no  useful  purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the  fact  that  the  complainant  has  on  11-1-2004, passed away and the possibility of a conviction being recorded has thus to be ruled out. 6. We  need  to  emphasise  that  it  is  perhaps advisable  that  in  disputes  where  the  question involved is of a purely personal nature, the Court should  ordinarily  accept  the  terms  of  the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour  of  the  prosecution  is  a  luxury  which  the courts,  grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding  more effective  and meaningful  litigation. This is a common sense approach to the matter based on  ground  of  realities  and  bereft  of  the technicalities of the law.”

       (emphasis is ours)

A perusal of the conclusions extracted above, with a reading of the FIR and the supporting documents in the above case reveal, that the

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dispute was purely of a personal nature, between two contesting parties. Further that, the dispute arose out of private business dealings between two private parties. And furthermore, there was absolutely no public involvement, in the allegations made against the accused. Based on the aforesaid considerations, this Court had held, that in disputes where the question involved was of a purely personal nature, it was appropriate for Courts to accept the terms of compromise, even in  criminal proceedings.  It was sought to be explained, that in such matters, keeping the matters alive would not result, in favour of the prosecution.  We are of the view, that the reliance on the above judgment would have been justified, if the inferences drawn by the High Court were correct, namely, that admittedly  there  was  no  misappropriation  of  the  funds  of  the Association,  and  secondly,  the  offences  alleged  were  purely personal in nature. We shall examine that, at a later stage.  14. Having placed reliance on the judgment in the Madan Mohan Abbot case (supra), which was determined by a two-Judge Division Bench of this Court, learned counsel for respondent nos.1 to 3 went on to place reliance on Gian Singh vs. State of Punajb (2012) 10 SCC  303,  which  was  decided  by  a  three-Judge  Division  Bench. Insofar as the instant judgment is concerned, learned counsel for respondent Nos.1 to 3, in the first instance, invited this Court's attention to paragraph 37 thereof, wherein the earlier decision rendered by this Court in the Madan Mohan Abbot case, was duly noticed. Thereupon, the Bench recorded its conclusion as under:

“59. B.S. Joshi (2003) 4 SCC 675, Nikhil Merchant (2008) 9 SCC 677, Manoj Sharma (2008) 16 SCC 1 and Shiji (2011) 10 SCC 705 do illustrate the principle

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that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High court under Section 482.  Can it be said that by quashing criminal proceedings  in  B.  S.  Joshi,  Nikhil  Merchant,  Manoj Sharma  and  Shiji  this  Court  has  compounded  the non-compoundable offences indirectly? We do not think so.  There  does  exist  the  distinction  between compounding  of  an  offence  under  Section  320  and quashing  of  a  criminal  case  by  the  High  Court  in exercise of inherent power under Section 482.  The two powers  are  distinct  and  different  although  the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment.  60. We find no incongruity in the above principle of law and the decisions of this Court in Simrikhia (1990) 2 SCC 437, Dharampal (1993) 1 SCC 435, Arun Shankar Shukla (1999) 6 SCC 146, Ishwar Singh (2008) 15  SCC  667,  Rumi  Dhar  (2009)  6  SCC  364  and  Ashok Sadarangani  (2012)  11  SCC  321.  The  principle propounded in Simrikhia that the inherent jurisdiction of  the  High  Court  cannot  be  invoked  to  override express bar provided in law is by now well settled. In Dharampal the Court observed the same thing that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code.  Similar statement of law is made in Arun Shankar Shukla.  In Ishwaqr Singh the accused was alleged to have committed an offence punishable under Section 307 IPC and with reference to Section 320  of  the  Code,  it  was  held  that  the  offence punishable under Section 307 IPC was not compoundable offence and there was express bar in Section 320 that no  offence  shall  be  compounded  if  it  is  not compoundable under the Code.  In Rumi Dhar although the accused had paid the entire due amount as per the settlement with the bank in the matter of recovery before the Debts Recovery Tribunal, the accused was being  proceeded  with  for  the  commission  of  the offences  under  Sections  120-B/420/467/468/471  IPC along with the bank officers who were being prosecuted under  Section  13(2)  read  with  13  (1)(d)  of  the Prevention of Corruption Act.  The Court refused to quash the charge against the accused by holding that the Court would not quash a case involving a crime against the  society when a prima facie case has been made out against the accused for framing the charge. Ashok Sadarangani was again a case  where the  accused persons  were  charged  of  having  committed  the offences  under Sections 120-B, 465, 467, 468 and 471, IPC and  the  allegations  were  that the accused

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secured the credit facilities  by  submitting  forged property documents as collaterals and utilised such facilities in  a   dishonest  and fraudulent manner by opening  letters  of  credit  in  respect  of  foreign supplies  of  goods,  without  actually  bringing   any goods   but   inducing   the  bank  to  negotiate  the letters of credit in favour of foreign  suppliers  and also by misusing the cash-credit  facility. The  Court was  alive  to  the reference made in one of the present matters and also the decisions in  B.S.Joshi, Nikhil Merchant and  Manoj  Sharma and  it  was  held that  B.S.Joshi,  and  Nikhil  Merchant  dealt  with different factual situation  as  the dispute involved had overtures  of  a  civil  dispute  but  the  case under consideration in Ashok Sadarangani was more on the  criminal  intent  than on a civil aspect.  The decision in Ashok Sadarangani  supports  the view that the criminal matters involving overtures of a civil dispute stand on  a different footing. 61.  The position that emerges  from  the  above discussion  can  be summarised thus:  the power  of the  High  Court  in  quashing  a  criminal proceeding or  FIR  or  complaint  in  exercise  of  its  inherent jurisdiction is distinct and different from the  power given  to  a  criminal  court  for compounding the offences  under  Section  320  of  the  Code.   Inherent power  is  of  wide  plenitude  with  no  statutory limitation but it has  to  be  exercised in accord with the guideline engrafted in such power viz; (i) to secure  the ends of justice, or (ii) to prevent  abuse of the process of  any  Court.  In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and the victim have settled their dispute  would depend on the facts and circumstances of each case and no  category  can be  prescribed.  However,  before  exercise  of  such power,  the  High  Court  must have due regard to the nature and gravity of the crime. Heinous and  serious offences of mental depravity or offences like murder, rape,  dacoity,  etc. cannot be fittingly quashed even though  the  victim  or   victim’s   family   and  the offender have settled the dispute. Such  offences  are not  private  in nature and  have  serious  impact  on society. Similarly, any  compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or  the  offences  committed  by public servants while working in that capacity, etc; cannot provide  for any basis for quashing criminal proceedings involving such   offences.   But   the  criminal  cases  having overwhelmingly  and  pre-dominatingly  civil  flavour stand  on  a  different  footing  for  the  purposes  of

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quashing,   particularly   the  offences  arising  from commercial, financial, mercantile, civil,  partnership or such like transactions or the offences arising out of matrimony  relating to dowry, etc. or the family disputes where the wrong is  basically  private or personal  in  nature  and  the  parties  have  resolved their  entire  dispute. In this category of cases, the High Court may quash criminal proceedings  if  in its view, because of the compromise between the offender and  the victim,  the possibility of conviction is remote and bleak and continuation  of  the criminal case would put  the accused  to  great  oppression and  prejudice  and  extreme injustice would be caused to him by not quashing the criminal  case  despite full and complete settlement  and  compromise  with the  victim.  In  other words, the High Court must consider whether it would be unfair  or  contrary to the  interest  of  justice  to   continue   with   the criminal   proceeding   or  continuation  of   the criminal  proceeding  would  tantamount  to  abuse  of process  of  law  despite  settlement  and  compromise between  the  victim  and the wrongdoer and whether to secure the ends of justice, it is appropriate  that the criminal case is put to an end and if the answer to  the  above  question(s) is in the affirmative, the High Court shall be well within its  jurisdiction  to quash the criminal proceeding.”

        (emphasis is ours)

15. A perusal of the above determination, leaves no room for any doubt, that this Court crystalised the position in respect of the  powers  vested  in  the  High  Court  under  Section  482  of  the Criminal Procedure Code, to quash criminal proceedings. It has now been decisively held, that the power vested in the High Court under Section  482  of  the  Criminal  Procedure  Code,  is  not  limited  to quashing proceedings within the ambit and scope of Section 320 of the Criminal Procedure Code. The three-Judge Division Bench in the above  case,  clearly  expounded,  that  quashing  of  criminal proceedings under Section 482 of the Criminal Procedure Code, could also be based on settlements between private parties, and could

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also on a compromise between the offender and the victim. Only that, the above power did not extend to crimes against the society. It is also relevant to mention, that the jurisdiction vested in the High Court under Section 482 of the Criminal Procedure Code, for quashing  criminal  proceedings,  was  held  to  be  exercisable  in criminal  cases  having  an  overwhelming  and  predominatingly  civil flavour, particularly offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions. Or even offences arising out of matrimony relating to dowry etc. Or family disputes where the wrong is basically private or personal.  In all such cases,  the parties should have resolved their entire dispute by themselves, mutually. 16. The  question  which  emerges  for  our  consideration  is, whether  the  allegations  levelled  in  the  complaint  against respondent nos.1 to 3, would fall within the purview of the High Court, so as to enable it to quash the same, in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code? 17. We shall now venture to determine the above issue.  A perusal of the complaint on the basis of which criminal prosecution came to be initiated against respondent nos.1 to 3 reveals, that the  accused  persons  were  described  as  office  bearers  of  `the Association', during the period from 2004 to 2008.  During the course of hearing, it was not disputed, that at the relevant time, respondent  no.1  –  Mohana  Kurup  was  the  President  of  `the Association'; respondent no.2 – Raveendran was the Secretary of `the Association'; and respondent no.3 – Sayed was the Treasurer of the Association.  It was alleged, that during their tenure, as

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office bearers of the State Committee of `the Association', they had exclusive access to the funds of `the Association'.  They, at their  own,  managed  the  funds,  for  and  on  behalf  of  `the Association'.  Consequent upon their resignation in 2008, when an ad  hoc Committee  took  up  charge  of  the  State  Committee,  it discovered  serious  misappropriation  of  funds  of  the  State Committee, which were in the name of the State Committee, and were not accounted for. Even the account books maintained by the State Committee, made no reference to the receipt of such amounts.  A specific  reference  was  made  to  M/s  Micro  Labs  Ltd.,  Bangalore, which  paid  a  sum  of  Rs.19,00,000/-  two  demand  drafts  being D.D.No.718573 and D.D.No.718574 in the sum of Rs.9,50,000/- each, drawn  on  the  Canara  Bank,  both  dated  17.04.2007.  It  was  also asserted  in  the  complaint,  that  `the  Association'  issued  two receipts dated 30.04.2007 and 15.05.2007 in acknowledgement of the receipt of the said amounts. It was alleged, that the said amount was never incorporated in the account books of `the Association'. It  was  also  alleged,  that  respondent  nos.1  to  3  dishonestly misappropriated  the  said  amount  to  themselves,  in  violation  of bye-laws and other regulations/directions of the State Committee, by creating false and fictitious accounts, by altering, destroying and mutilating the original accounts of the State Committee, with a willful intention to obtain illegal financial gains, and to defraud the  State  Committee.  It  is  also  relevant  to  mention,  that consequent upon completion of investigation, the chargesheet dated 22.03.2009, filed against respondent nos.1 to 3, stated thus:-

“The accused persons being the office bearers of the

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State  Committee,  All  Kerala  Chemists  &  Druggists Association, in furtherance of their common intention to obtain illegal financial gain conspired conjointly and  cheated  the  Association  and  its  members  by misappropriating  the  funds  given  by  various  drug companies  to  AKCDA functioning  near  South  Railway Station, Ernakulam during the period from 17.04.2007 to 11.04.2008. The Demand Drafts and Cheques received were  not  credited  in  the  account  of  AKCDA.  The accused  falsified  the  accounts  of  AKCDA  and unauthorisedly  opened  accounts  in  South  Malabar Gramin  Bank,  Palakkad  Branch  and  ICICI  Bank, Edappally Branch and credited the amounts in the said accounts.   The  DD's  and  cheques  received  were encashed in the aforesaid accounts on various dates and  an  amount  of  Rs.80,00,000/-  was  diverted  for their  own  use.  The  accused  thereby  cheated  the members  and  the  association  and  committed  criminal breach  of  trust.   The  accused  also  committed  the offence alleged.”

  (emphasis is ours) 18. In the above view of the matter, we are satisfied that the allegations levelled against respondent nos.1 to 3 were of a nature, which could not be treated as purely of a personal nature. We are also astonished, that the complainants, who are arrayed in the  present  appeal  as  respondent  nos.4  to  7  affirmed  (in  the compounding petition) that “no misappropriation of the amounts of All Kerala Chemists and Druggists Association is committed by the petitioners/accused persons”. We are also amazed, that respondent nos.8  and  9  herein,  who  were  the  General  Secretary  and  the Treasurer respectively of the Association, at the time of filing of the  compounding  petition,  confirmed  the  stand  adopted  by  the complainants, in the compounding petition. The accusations levelled against  respondent  nos.1  to  3,  in  our  considered  view,  do  not pertain to a dispute which can be described as purely of a personal nature. It is also not possible for us to acknowledge the position adopted  by  the  complainants,  and  the  then  members  of  the

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Association, that no misappropriation had been committed by the accused.  We cannot appreciate how such a statement could have been made after the investigation had been completed, and charges were framed,  which  were  pending  trial  before  a  court  of  competent jurisdiction. 19. We are of the view, that the basis on which the impugned order  was  passed,  was  incorrectly  determined  as  of  a  personal nature.  Additionally, the accusations were not of a nature which can be classified by this Court, as were amenable to be quashed, under Section 482 of the Criminal Procedure Code.   20. To be fair to the learned counsel for respondent Nos. 1 to 3, we may also refer to Narinder Singh  vs. State of Punjab, (2014) 6 SCC 466, wherein one of the offences for which the accused was proceeded against was under Section 307 of the Indian Penal Code.  It was submitted, that even for such criminal offences, a Court of competent jurisdiction, under Section 482 of the Criminal Procedure Code, could quash the criminal proceedings.  Reference in this behalf was made to the conclusions drawn by this Court in paragraphs 29.6 and 29.7, which are extracted hereunder:

“29.6 Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone.  However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the  High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High court to go by the nature  of  injury  sustained,  whether  such  injury  is inflicted   on  the  vital/delegate   parts  of  the  body, nature of weapons used, etc. Medical report in respect of

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injuries  suffered  by  the  victim  can  generally  be  the guiding  factor.   On  the  basis  of  this  prima  facie analysis, the High court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak.  In the former case it can refuse to accept the settlement and quash the criminal proceedings  whereas  in  the  latter  case  it  would  be permissible  for  the  High  Court  to  accept  the  plea compounding  the  offence  based  on  complete  settlement between the parties.  At this stage, the court can also be swayed by the fact that the settlement between the parties is  going  to  result  in  harmony  between  them  which  may improve their future relationship.  29.7  While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a  crucial  role.  Those  cases  where  the  settlement  is arrived  at  immediately  after  the  alleged  commission  of offence and the matter is still under investigation, the High court may be liberal in accepting the settlement to quash  the  criminal  proceedings/investigation.  It  is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence  is  yet  to  start  or  the  evidence  is  still  at infancy  stage,  the  High  court  can  show  benevolence  in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On  the  other  hand,  where  the  prosecution  evidence  is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court  should  refrain  from  exercising  its  power  under Section 482 of the Code, as in such cases the trial court would  be  in  a  position  to  decide  the  case  finally  on merits  and  to  come  to  a  conclusion  as  to  whether  the offence  under  Section  307  IPC  is  committed  or  not. Similarly, in those cases where the conviction is already recorded  by  the  trial  court  and  the  matter  is  at  the appellate  stage  before  the  High  Court,  mere  compromise between the parties would not be a ground to accept the same  resulting  in  acquittal  of  the  offender  who  has already  been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question  of  sparing  a  convict  found  guilty  of  such  a crime.”

(emphasis is ours) 21. It is not possible for us to accept the submissions advanced at the hands of the learned counsel for respondent nos.1 to 3, on the basis of the observations extracted hereinabove.  In the above

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judgment,  this Court was of the view, that it would be open to the High  Court  to  examine,  as  to  whether  there  was  material  to substantiate the charge under Section 307 of the Indian Penal Code, and  also,  to  determine  whether  the  prosecution  had  collected sufficient evidence to substantiate the said charge. And in case sufficient evidence to sustain the charges did not emerge, it would be open to the High Court to quash the proceedings. We are of the view, that the instant judgment had no relevance, to the facts and circumstances  of  this  case.  Herein,  the  investigation  has  been completed, and the final report was filed before the Chief Judicial Magistrate, Ernakulam, on 22.03.2009.  More than 6 years have gone by since then.  It is not the case of the accused, that the final report  does  not  contain  adequate  material  to  substantiate  the charges.  J.Ramesh Kamath, appellant no.1 herein, has been cited as charge witness no.5; Giri Nair- appellant No.2 herein, has been cited as charge witness no.6; and Antony Tharian – appellant no.3 herein,  has  been  cited  as  charge  witness  no.18.   It  is  their contention, that the charges are clearly made out on the basis of documentary  evidence.   We  would  say  no  more.  But  that,  the inferences are those of the appellants, and not ours.  The eventual outcome would emerge from the evidence produced before the trial court. 22. For the reasons recorded hereinabove, we allow the appeal and set aside the impugned order passed by the High Court.  CC No.90 of 2009 is accordingly restored on the file of the Chief Judicial  Magistrate,  Ernakulam.   We  direct  the  trial  court  to proceed further with the matter, in accordance with law.

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23. In the peculiar facts and circumstances of this case, we cannot endorse or appreciate the stand adopted by respondent Nos.4 to 9. We accordingly direct further investigation in this matter, pertaining  to  the  role  of  respondent  nos.4  to  9,  and  direct initiation of proceedings against them, if made out, in accordance with law.  

                          ..........................J.

         (JAGDISH SINGH KHEHAR)                                       

    ..........................J.           (C.NAGAPPAN)

NEW DELHI; MAY 04, 2016.

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