compromise with dmart under ipc380

bable sharma (Querist) 26 March 2020 This query is : Resolved
i askes dmart manager who file FIR for theft in dmart mall i pray for compromise he said i can answer only after asking mumbai official wheather to compromise or not .chargsheet not files yet

i want to know compromise would be made by them or not please answer i am in tension

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Raj Kumar Makkad (Expert) 26 March 2020
No accused can force the complainant to make a compromise. It is the sweet desire of the complainant to make compromise or not. There is no legal issue in your post.

Dr J C Vashista (Expert) 27 March 2020
Were you suspended by the department (your employer) after 48 hours in jail ? Any departmental inquiry instituted to find out the fact/charge ?
What was the charge where you were awarded jail for 3 days, if your statement may be believed to be true?
If it is a true story it is advisable to consult a local prudent lawyer for better appreciation of facts/documents, professional guidance and necessary proceeding

bable sharma (Querist) 27 March 2020
.i aksed to compromise dmart manager ha said i will advise to mumbai official .if anyone tells me wheather they will make compromise or not.charge sheet not filed .police saw a advocate to me for 482 .i promise to him that after compromise i will hire your advocate i am unable to meet manager till 14 april .

bable sharma (Querist) 27 March 2020
it has been days.since i have no idea

Rajendra K Goyal (Expert) 27 March 2020
You are in trouble.
section 380 IPC is non compoundable.
Hire the services of some experienced lawyer to defend you.
If punished, govt. department may not allow continue your services.

Rajendra K Goyal (Expert) 27 March 2020
As far as Section 482 is concerned, without going through full case file, scope of success can not be assessed.

Department may suspend you as you have been behind bars for 3 days.

bable sharma (Querist) 27 March 2020
rajendra K Goyal sir how could i show you my file . in dmart case you replied

bable sharma (Querist) 27 March 2020
Rajendra sir g I want to show you file for best results how could I will do so

Rajendra K Goyal (Expert) 27 March 2020
You can engage good experienced lawyer locally, he would definitely help you.

Regret, I avoid new cases due to age factor.

bable sharma (Querist) 27 March 2020
Thankyou rajendra sir g for your reply .

T. Kalaiselvan, Advocate (Expert) 27 March 2020
Section 380 IPC : Theft in Dwelling house etc.,

Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

It is a non-compoundable and non-cognizable offence

If there arises a compromise situation then you may wait for the charge sheet to be filed before court.

T. Kalaiselvan, Advocate (Expert) 27 March 2020
During trial proceedings, the defacto to complainant may inform court that there was a compromise arrived and the assistant public prosecutor may inform the court informally but off the records that owing to the current compromise situation, the defacto complainant who is the prosecution witness may be treated as hostile witness.
If the court agrees for this situation then the other witnesses maybe formally examined and the court may acquit you.
Don't waste time by filing a quash petition under section 482 cr.p.c. before high court because the offence is admitted hence the quash petition may be dismissed.

bable sharma (Querist) 27 March 2020
i am grateful to you for your advice.

bable sharma (Querist) 27 March 2020
i am waiting for answer

Raj Kumar Makkad (Expert) 27 March 2020
Who told you that Court requires your acceptance of offence to initiate trial?

Raj Kumar Makkad (Expert) 27 March 2020
This is a criminal case wherein you have committed one more offence by getting the casual leave from your department for the days you were in judicial custody for 3 days. Seeking leave on false grounds from the department is an offence. Ultimately, Govt. Counsel present in the court shall have to send an information of your involvement in the said case and the judicial custody of 3 days to your department and thus the consequences of said false assertion and the criminal case are to be faced by you.

Raj Kumar Makkad (Expert) 27 March 2020
Police has to file challan/charge-sheet now after the courts open (post 15th April) and the charge shall be framed against you. If complainant is ready to make compromise only then it can be got effected and the success of 482 Cr. PC petition on the basis of compromise only can sustain in the given case.

Raj Kumar Makkad (Expert) 27 March 2020
Don't waste your money just for enquiring the lawyers. Wait the reply of the complainant. If he is ready to make compromise then your strategy shall be otherwise. Engage your counsel only after receiving the final reply.

T. Kalaiselvan, Advocate (Expert) 27 March 2020
If at all the company is trying to go for compromise, it clearly states that they have negotiated with you on your admission to the theft.
You have mentioned in your first post of this thread that you pray for compromise for which manager told that he has to consult his higher officer, this indicates that because you have admitted the commission of offence that you went for compromise.
If that is what is the situation then you may better not approach high court with a quash petition, it will be dismissed.
Instead you dont go for compromise and wait for the charge sheet to be filed by the police, after which you can approach high court with a petition under section 482 cr.p.c. seeking to quash the charge sheet, and fight it out on merits and documentary evidences in your support.
If this is not possible then you may talk to the organisation and then arrive at an out of court compromise and follow the steps suggested in the trial court to get acquitted.

Raj Kumar Makkad (Expert) 27 March 2020
The author has nowhere told that the complainant is ready for compromise rather she has repeatedly posted the fact that the complainant says that he shall require the permission of his head-office situated in Mumbai. This fact is insufficient to conclude that the complainant is tring for the compromise and accordingly the author/accused should not be misguided to take a particular action.

As already told, she has lost her valuable money just for such misguidance. She should again not be misguided.

bable sharma (Querist) 28 March 2020
i am very grateful to you advocates for reply my query & your guidance .

T. Kalaiselvan, Advocate (Expert) 28 March 2020
Don't be misguided by such false assurances.
You will be losing more money by such false assurances, ultimately when the things do not go in your favor, the said advocate may express his helplessness or he may not be available for further contact.
If you want to be safe and secured you may follow the steps suggested, I.e. in the absence of any compromise arrangement, you may file a quash petition before high court to quash the charge sheet or get the witness turn hostile in the trial proceedings or challenge the case properly in the trial proceedings on the basis of merits and documentary evidences in your support.
Now the choice is yours.

bable sharma (Querist) 28 March 2020
thank you ,T.kalaiselvan ,sir for your reply ,i have to wait till 14 April lock down is over.REGARDS

T. Kalaiselvan, Advocate (Expert) 28 March 2020
You are welcome for your appreciations.
Do not take any decision in haste.
Take wise decision at right time.
You may revert for any more clarifications too.

Rajendra K Goyal (Expert) 28 March 2020
You said:

i am grateful to you for your advice. sir i want to tell that you have said don't go for 482 quesh because the offence is admitted but i did not admitted this offence the very first time when i met majistret before she ordered jail, i said to her that i don't know how some items comes inside to my sealed bag.after this dialogue i didn't said a single word in court. she ordered JC.I got bail & after only one date I went court to sign. after this date my advocate attended court .next date is 8 april. charge sheet not filed yet. due to lockdown i am unable to contact comlainant .i am awaiting your valuable suggestion .please

Reply:

You have not admitted the offense, however from the circumstances moving u/s 482 may not be of sure success. Let the police file charge sheet.
Contacting Complainant by you directly is not recommended, in case he moves otherwise, Police may approach court for cancellation of your bail.

Rajendra K Goyal (Expert) 28 March 2020
You said:
when i was not admitted the offence should still i quit 482 quash or try this what is your opinion? I also don't know whether the compromise will made by complainant or he is making fun of me .by telling that he will ask his seniors SIR does manger is obligated to have to advice his seniors that whether i make compromise or not to make .Could he don,t decide it his own level. May be he is making excuse i think so .please

Reply:

Since you are at Jaipur, High Court is also at Jaipur, you may discuss with your / high court lawyer in detail regarding scope for filing 482 case.
Section in which you are framed, being non compoundable, compromise may not work as such. In such case, you have to face trial.

Rajendra K Goyal (Expert) 28 March 2020
You said:
i am very grateful to you brilliant advocates for spent your time &experience to reply my query &availing me your valuable guidance which is free of cost also.i share my problem to a young advocate he said i can manage police for FR(false report) after FR court could not make cognizance .is this true ? may i rely him.please

Reply:

We do not advice / opine / recommend / suggest regarding the ways which are not legal like as you have mentioned.

bable sharma (Querist) 28 March 2020
rajendra sir g i haven't met second time to both complainant &police . i fear both. my relatives met to both. i discussed advocate he said (even without having any ground to make 482 because in FIR it clearly mention that accused is going outside the store rapidly&we catch her &items have found in her band (hindi word) bag they have cctv footage .advocate said if court is going to kharij (hindi word) your petition i will withdraw 482.i think without compromise it is not a fit case for 482.i am afraid facing the court ,magistrate public prosecutor .police had met my relative to an advocate for 482 & . you said this case is not legal case excuse me.i don`t know law. After having FIR i started reading about law. i am not living in Jaipur.my relatives lives. thank you for replying

bable sharma (Querist) 28 March 2020
Thank you for advise

Rajendra K Goyal (Expert) 28 March 2020
From the facts given, success is doubtful if filed 482. However, you can take a chance if your lawyer is satisfied.

Otherwise, you may have to face trial.

bable sharma (Querist) 28 March 2020
ThanK you Rajendra G sir. i wish to visit your office in gurgaon after 14 april please .

P. Venu (Expert) 28 March 2020
The facts posted suggest that offence alleged does not have the ingredients of Section 380 IPC, but only those of Section 378 & 379:

378. Theft
Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

379. Punishment for theft
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

380. Theft in dwelling house, etc
Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling., or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Admittedly, the place where the alleged offence had taken place is a public place. Hence the provisions of Section 379 apply which is compoundable.

You have rightly taken up the matter with the de-facto complainant; wait for their response. If necessary, you may follow up with the higher management.

There is no need to hurry. It would be some time, even years, before you are summoned for trial.

Yes, it is improper that you have not apprised your controlling officer of the arrest. But now that you are enlarged on bail, the issue is not of much consequence in the normal circumstances.

T. Kalaiselvan, Advocate (Expert) 28 March 2020
Yes you can personally contact our expert Advocate Mr. Rajndra K Goyal for all such further actions.
You may get proper guidance and suggestions for the steps to be taken in furtherance if you happen to meet the said learned friend Advocate Mr. R K Goyal.

bable sharma (Querist) 28 March 2020
P.venu sir throw a new light to case that this is public place&379 ipc should applied.nobody told me this fact. But P.venu g you said not have ingredients of 380 but again you said only u/s379 & 380. May be you thought to write u/s
378 & 379.please correct me .

T.Kalaiselven sir bangaluru is 2100km distance according google map so i can not manage and i have to travel alone.
but i can manage gurgaon which is 250 km. But earlier R.K.Goyal sir regrets to see this new case due to age factor . Thank you

Raj Kumar Makkad (Expert) 28 March 2020
Irrespective of your personal problems, you shall have to face the trial unless complainant comes to help you. The possibility of the transfer of the case do not arise as the entire cause of action has arisen within the local jurisdiction of the Criminal Court at Jaipur.

Raj Kumar Makkad (Expert) 28 March 2020
You were caught red-handed at the spot in the presence of the witnesses and CCTV footage is also with the complainant and the police duly mentioned in the FIR so there is no scope for filing the quashing petition under section 482 CrPC on merits.

Raj Kumar Makkad (Expert) 28 March 2020
As per your version, you have already consulted your issue with 7-8 lawyers of Jaipur and at least 10 lawyers have attended your story here and none can say that on how much similar sites, you might have posted the same query and might be obtaining their legal advice as the same is totally free.

It seems that now you are misguiding the lawyers and we have already offered ourselves to devote our time and energy to read your continuous conversation and go on replying one expert after other. It is very good time-pass also during the days of COVID-19.

Raj Kumar Makkad (Expert) 28 March 2020
You have amply been advised that unless complainant becomes ready to make a compromise with you, the scope of cancellation of FIR or filing petition under section 482 on merits has no scope at all.

Now you are free to misguide or be misguided. by or on behalf of some of the lawyers & police having eyes on your money

P. Venu (Expert) 28 March 2020
In my above posting, the following corrections may kindly be noted:

The facts posted suggest that offence alleged does not have the ingredients of Section 380 IPC, but only those of Section "378 & 379" (instead of 379 & 380):

and also,

Yes, it is improper that you have not apprised your controlling officer of the arrest. But now that you are enlarged on bail, the issue "is not of much consequence" (instead of is of much consequence) in the normal circumstances.

The lapses are regretted. I have since edited and carried out the corrections.

T. Kalaiselvan, Advocate (Expert) 28 March 2020
Dear Author,
I did not ask you to contact me in person nor over phone.
Since you opted to contact and consult learned friend advocate Mr. R.K.Goyal, hence I suggested you to meet him for best advise and proper guidance.
However it is his decision to render his services or not.
Anyhow, you can contact any other prudent advocate who you may trust faith in the local
Of course you cannot meet me owing to the distance that matters especially with the given nature of case.
However you are at liberty to contact me over phone or email if you need any further advise on the subject, or you are at liberty to contact any of the experts here over the mode of contact that would be feasible to you.
Thank you.

bable sharma (Querist) 28 March 2020
P.venu g i am very thankful to you for showing me new hope that it is u/s 379 because mall is a public place &hence 379 is compoundable .regards

bable sharma (Querist) 28 March 2020
T .Kalaiselvan sir you did not ask me but it is my wish to meet prudent lawyer.All lawyers here at LCI are best but beyond my reach due to distance. Thank you sir

Raj Kumar Makkad (Expert) 28 March 2020
I slightly differ with the opinion of Ld. Expert P. Venu that the Mall is a public place.

There are several examples of shopping malls limiting access to certain populations, thereby making these malls into spaces that are obviously not public in nature. There are those who would contest this issue though and suggest that shopping malls do fulfill a function as a social gathering place. This concept is suggested by Jefferey S.P. Hopkins as he discusses the West Edmonton Mall. However, while he makes a point to extol the virtues of the mall as a social gathering place, he also points out that the mall can also impede social relations because the populations entering are filtered, creating a false social atmosphere (Hopkins, 1991, p. 270).
It is plain to see from the above evidence that shopping malls are in the business of limiting access to their spaces. They limit it by class (those who can afford to shop there), by race (colored teens), and even by age (curfews). Due to these limitations on access the shopping mall cannot be truly considered public space, at best it is quasi-public as it does allow for social interaction. However, this social interaction is stunted due to the separating out of certain elements of society.
Shopping malls also put limitations on the activities that can be participated in within the space. True public space, as mentioned earlier, allows for debate of various kinds, it allows for the sharing of ideas. Public space is open for political debate. Public space is a place where all walks of society can come and participate in the daily life of society. This section will show that shopping malls are not open for many of these things, or if they are, they are highly controlled.

T. Kalaiselvan, Advocate (Expert) 29 March 2020
Section 378 of the IPC defines “theft” and section 379 of the IPC provides for punishment for theft. As per the latter, the offence is “cognizable” meaning a police officer can arrest without warrant. It is also non-bailable. The offence is however “compoundable” meaning the complaint/case can be settled/withdrawn.
If the FIR has already been registered under section 380 then you may have to take it up as per FIR only, you cannot change the section or provision o f law on your own, however you can challenge the same during trial proceedings.
Hence you first ascertain the charges framed against you and the provisions of law that has been invoked to proceed further.

bable sharma (Querist) 29 March 2020
Thank you for your reply.Regards

Rajendra K Goyal (Expert) 29 March 2020
You can discuss with your lawyer following judgement and may proceed accordingly.
Delhi High Court in the case of Rajiv Kumar Vs. State Govt. of nct Delhi & others on 28.03.2016 ruled
“8. Both the parties who are present in the Court today, approbate the aforesaid settlement dated 16.03.2016 and undertake to remain bound by the same.
9. As discussed above, offence punishable under Section 380 IPC is not compoundable being of serious nature, however, if the Court feels that continuation of criminal proceedings will be an exercise in futility and justice in this case demands that the dispute between the parties is put to an end and peace is restored, it can order for quashing of the FIR or criminal proceedings as it is the duty of the Court to prevent continuation of unnecessary judicial process.”

bable sharma (Querist) 29 March 2020
Thank you Rajendra g for your reply

bable sharma (Querist) 29 March 2020
thank-you for replying

Raj Kumar Makkad (Expert) 29 March 2020
Compounding or non-compounding is not an issue in your case. You are wasting time of yourself as well as of the experts.

Your basic issue is readiness and willingness of the complainant for making compromise with you or not?

Lawyers are enough educated to apply the relevant law for getting the desired relief if basic ingredients are present.

You just prepare the complainant to pardon you and rest leave upon local lawyer to be engaged by you to decide which way he gets timely relief.

Rajendra K Goyal (Expert) 30 March 2020
As advised previously, you can not pressurise the complainant / any witness related to the case which may be termed undue pressure / illegal.