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2002 DIGILAW 694 (RAJ)

Bheru Singh v. State of Rajasthan

2002-04-02

H.R.PANWAR

body2002
Honble PANWAR, J.–By this petition under Sec. 482 Criminal Procedure Code (hereinafter referred to as `the Code), petitioner seeks dropping of criminal proceedings pending against him before the trial court. (2). A charge sheet was filed against the petitioner for offence under Sections 324, 326, 323, 341, 147, 148 and 149 I.P.C. on an FIR lodged by non-petitioner No. 3 Vijay Singh. During pendency of the criminal proceedings against the petitioner for offences noticed above, a compromise was filed before the trial court on 1.10.2001. By the order impugned dated 1.10.2001, the trial court verified the compromise for the offences under Sections 323, 324 and 341 I.P.C. as these offences are compoundable under Sec. 320 of the Code and acquitted the petitioner for the offences under sections 323, 324 and 341 I.P.C. The trial court refused to compound the offences under sections 147, 148, 149 and 326 I.P.C. as these offences are not compoundable under Sec. 320 of the Code. The trial court proceeded with the trial of the case. Aggrieved by the order dated 1.10.2001, the petitioner has filed the present petition under Sec. 482 of the Code for dropping of the proceedings for the offences, which are not compoundable. (3). I have heard learned counsel for the parties. Perused the order impugned. (4). Learned counsel for the petitioner contended that though the offences for which the trial court refused to compound are non- compoundable yet the parties entered into the compromise and, therefore, the trial court ought to have compounded the offences and the proceedings against the petitioner should have been dropped. (5). Learned Public Prosecutor and the learned counsel for non- petitioners No. 2 and 3 contended that the offences, which are out of purview of Sec. 320 of the Code are non-compoundable and the trial court has rightly refused to record the compromise for those offences. (6). Learned counsel for the petitioner relied on a judgment of the Honble Supreme Court in Mahesh Chand & Another vs. State of Rajasthan (1). He has also relied on Gur Charan Kaur vs. State (2), Rameshwar @ Pappu & Ors. vs. State of Rajasthan and Ors. (3), Saleem & Ors. vs. The State of Rajasthan & Ors. (4), Abdul Nadeem & Ors. vs. State of Rajasthan & Ors. (5), Gurcharan Singh vs. State & Anr. (6). (7). Section 320 of the Code deals with compounding of offences. vs. State of Rajasthan and Ors. (3), Saleem & Ors. vs. The State of Rajasthan & Ors. (4), Abdul Nadeem & Ors. vs. State of Rajasthan & Ors. (5), Gurcharan Singh vs. State & Anr. (6). (7). Section 320 of the Code deals with compounding of offences. The relevant provisions contained in sub-sections (1), (2), (6), (8) and (9), which are relevant for the decision of this petition are reproduced hereunder. ``320. Compounding of offences. (1) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table..... (2) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table.... (6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this section. (8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. (9) No offence shall be compounded except as provided by this section. (8). The offences which are specified in the table under sub- section (1) of Sec. 320 of the Code are compoundable without permission of the court. The offences which are specified in the table under sub-section (2) of Sec. 320 of the Code are made compoundable with the permission of the court before which any prosecution for such offence is pending. From the language of sub-section (2) of Sec. 320 of the Code, it is clear that the offences in the table under sub-section (2) of Sec. 320 of the Code cannot be compounded unless the court before which any prosecution for such offence is pending, permits. There is no other provision in the Code which provides compounding of offences other than those specified in sub-sections (1) and (2) of Sec. 320 of the Code. There is no other provision in the Code which provides compounding of offences other than those specified in sub-sections (1) and (2) of Sec. 320 of the Code. Sub-section (6) of Sec. 320 of the Code provides that High Court or Court of Session acting in the exercise of its powers of revision u/Sec. 401 may allow any person to compound any offence which such person is competent to compound under this section. Sub-section (9) of Sec. 320 of the Code provides that no offence shall be compounded except as provided by this section. Sub-section (9) starts with non- obstante clause. Thus, this sub-section puts an absolute bar to compound the offences except as provided in sub-sections (1) and (2) of Sec. 320 of the Code. (9). Offences under Sections 326, 147, 148 and 149, IPC are not specified in any of the two tables provided in sub-sections (1) and (2) of Sec. 320 of the Code. (10). In Surendra Nath Mohanty and another vs. State of Orissa (7), the three Judges Bench of the Honble Supreme Court held that the course adopted in Ram Pujan vs. State of U.P. (8) and Mahesh Chand vs. State of Rajasthan (supra) was not in accordance with law. In the case of Surendra Nath Mohanty (supra), the point for consideration before the Honble Supreme Court was that the appellants therein were convicted for offences under Sections 326, 325, 324 and 323 read with Sec.34 I.P.C. The dispute was amicably settled between the parties and the matter was compromised. The High Court refused to grant permission to compound the offences under Section 326 I.P.C. as the offence u/Sec. 326 I.P.C. is not compoundable under sub-sections (1) and (2) of Sec. 320 of the Code. The Honble Supreme Court held that 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. (11). In Mohan Singh & Ors. 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. (11). In Mohan Singh & Ors. vs. State of Rajasthan (9), a Full Bench of this Court held that in view of express bar contained in sub-section (9) of Sec. 320 of the Code, the High Court cannot, in exercise of its inherent power u/Sec. 482 of the Code, permit composition of an offence which is not compoundable under sub- section (1) or sub-section (2) of Sec. 320 of the Code. The question of law for consideration before the Full Bench of this Court was whether composition of offence/offences, except as provided by section 320 Cr.P.C. can be permitted in exercise of power u/Sec. 482 Cr.P.C., specially when sub-section (9) of Sec. 320 Cr.P.C. expressly prohibits. This Court answered the question in negative. (12). In Ramesh Chand & Ors. vs. State of Rajasthan & Ors. (10), this Court relying on the Full Bench decision in Mohan Singhs case (supra) held that the Single Bench decisions directing the trial court to grant permission to compound non- compoundable offence, are, therefore, without any force of law as they are directly contrary to the Full Bench decision of this Court. The Singh Bench decision in Gurcharan Kaur vs. State of Rajasthan (11). and number of other decisions of the Single Bench of this Court were held not to lay down good law in view of the decision of the Full Bench in Mohan Singhs case (supra). While deciding the question as to whether proceedings can be quashed u/Sec. 482 Cr.P.C. on the ground that parties have compounded an offence which is non-compoundable under the law, this Court held that the High Court cannot convert a non-compoundable offence into a compoundable offence by quashing proceedings u/Sec. 482 Cr.P.C. (13). While deciding the question as to whether proceedings can be quashed u/Sec. 482 Cr.P.C. on the ground that parties have compounded an offence which is non-compoundable under the law, this Court held that the High Court cannot convert a non-compoundable offence into a compoundable offence by quashing proceedings u/Sec. 482 Cr.P.C. (13). In view of the decision of three Judges Bench of the Honble Supreme Court in Surendra Nath Mohantys case (supra) and a Full Bench of this Court in Mohan Singhs case (supra), the Single Bench decisions of this Court and Delhi High Court relied upon by the learned counsel for the petitioner directing the trial court to compound the non-compoundable offence or quashing the proceedings by exercising the inherent powers u/Sec. 482 Cr.P.C. are, therefore, without any force of law as they are against the legislative mandate as provided under sub-section (9) of section 320 of the Code and are directly contrary to the decisions of the Honble Supreme Court in Surendra Nath Mohantys case (supra) and the Full Bench decision in Mohan Singhs case (supra). Mahesh Chands case (supra) relied upon by the learned counsel for the petitioner came to be considered by the Honble Supreme Court in Surendra Nath Mohantys case (supra) and the Honble Supreme Court held that the course adopted in Mahesh Chands case (supra) was not in accordance with law. In view of the judgment of the Honble Supreme Court in Surendra Nath Mohantys case (supra) and the Full Bench decision of this Court in Mohan Singhs case (supra), in my considered opinion, the impugned order of the trial court cannot be said to be contrary to law. (14). In view of the aforesaid discussion, I do not find any merit in this petition. Accordingly, it is dismissed.