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2005 DIGILAW 200 (AP)

N. Raja Malla Reddy v. State Of A. P.

2005-03-03

T.CH.SURYA RAO

body2005
T. SURYA RAO, J. ( 1 ) THE petitioner seeks to assail the order 19-12-2002 passed by the learned VII additional Metropolitan Sessions Judge, hyderabad, in Criminal Revision Petition no. 286 of 2002. ( 2 ) THE petitioner is the de facto complainant in C. C. No. 1013 of 2000 pending on thefile of the XVII Metropolitan Magistrate, hyderabad. The second respondent herein is the accused in the said criminal case. On a report given by the petitioner, the crime under Section 420 of the Indian Penal Code (fore brevity ipc ) had been registered against the second respondent and eventually charge-sheet was laid. The second respondent appeared before the Court pursuant to its summons on 10-04-2001. On 17-07-2001 he was examined under section 239 of the Code of Criminal Procedure (for brevity the Code ) when he abjured the guilt. On 10-04-2001 itself a petition was filed by the petitioner under Section 320 of the code seeking leave of the Court for withdrawing the complaint in Crl. M. P. No. 1359 of 2001. It appears that not noticing the same the accused was examined under section 239 of the Code. Some time thereafter a memo was filed by the learned Assistant public Prosecutor before the Court seeking to withdraw the petition filed by the de facto complainant on the premise that the accused failed to fulfill the terms of compromise and, therefore, the complainant wanted to proceed with the case. ( 3 ) THE learned XVII Metropolitan magistrate, after having heard both sides and perusing the petition filed by the complainant in Crl. M. P. No. 1359 of 2001 and the memo filed by the learned Assistant public Prosecutor, eventually by his order dated 12-08-2002 refused to grant permission to withdraw the case while accepting the memo filed by the Assistant Public prosecutor. ( 4 ) HAVING been aggrieved of the same, the second respondent carried the matter in revision to the Sessions Court and under the impugned order, the learned VII Additional metropolitan Sessions Judge, Hyderabad, allowed the revision petition. As aforesaid, the de facto complainant in the case seeks to assail the same. ( 5 ) IT is obvious from the matrix that crl. M. P. No. 1359 of 2001 was filed under sections 257 of 320 of the Code. As aforesaid, the de facto complainant in the case seeks to assail the same. ( 5 ) IT is obvious from the matrix that crl. M. P. No. 1359 of 2001 was filed under sections 257 of 320 of the Code. Inasmuch as the offence alleged in this case is one of cheating punishable under Section 420 of the IPC, which entails punishment to the extent of seven years, the case shall have to be tried by adopting warrant procedure. Indeed, by adopting the warrant procedure, the second respondent was examined under section 239 of the Code. Therefore, an application under Section 257 of the Code for withdrawal of the complaint cannot be maintained. It is a case where if the prosecution were to be withdrawn, an application shall be filed by the Public prosecutor under Section 321 of the Code. It is not very much germane in this case having regard to the fact that Crl. M. P. No. 1359 of 2001 was also filed under Section 320 of the code by the de facto complainant himself. The application appears to have been signed only by him. The grievance of the de facto complainant appears that the consideration for the compromise as agreed upon has not been paid by the accused. On that premise, he seeks to withdraw from the compromise. However, the contention of the accused seems to be that an application under section 320 of the Code having been filed by the complainant, it is not open to him to withdraw the same. It is appropriate, therefore, to peruse Section 320 of the Code, which may be excerpted hereunder insofar as is necessary for the present purposes:"320. However, the contention of the accused seems to be that an application under section 320 of the Code having been filed by the complainant, it is not open to him to withdraw the same. It is appropriate, therefore, to peruse Section 320 of the Code, which may be excerpted hereunder insofar as is necessary for the present purposes:"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:- (3) xxxx (4) xxxxx (5) xxxxx (6) xxxxx (7) xxxxx (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) xxxxxx" ( 6 ) IT is obvious from the above excerpted provision that it provides for compounding of offences. In this regard, the Code seeks to categorize the offences into two groups. Under sub-section (1) of Section 320 of the code certain offences have been listed which can be compounded without the permission of the Court and under sub-section (2) thereof those which can be compounded only with the permission of the Court have been mentioned. Sub-Section (8) thereof clearly shows that a composition of an offence by the aggrieved party has the effect of an acquittal of the accused in the case. Sub- section (9) thereof mandates that no offence shall be compounded except as provided by the Section. The basis for the classification of offences as compoundable; offences compoundable with the sanction of the Court; and the offences not compoundable at all, seems to be the degree of wrong done to the state by perpetration of the crime. Wrongs done to the citizens which do not seriously affect the interest of the community or the state are compoundable by the injured party without any reference to the Court. Wrongs done to the citizens which do not seriously affect the interest of the community or the state are compoundable by the injured party without any reference to the Court. In the second category of cases the larger interest of the society is involved and where on account of the perpetration of the crime, in such cases it is expedient to leave it to the discretion of the Court to exercise it in a judicious manner by permitting the aggrieved party to compound the offence. ( 7 ) IT is appropriate to consider what exactly is meant by compounding of an offence. The dictionary meaning of the word compound as can be seen from Concise Oxford dictionary, Ninth Edition, at page 273, is as under: compound means condone (a liability or offence) in exchange for money etc. ; forbearfrom prosecuting (a felony) from private motives; come to terms with a person, for forgoing a claim etc. for an offence. " it is obvious, therefore, that composition is an arrangement or settlement of differences between the injured party and the person against whom the complaint is made. That means the victim is willing either to forgive it or to accept some form of a solatium as sufficient compensation for the wrong done to him. Although settlement of differences presupposes a bilateral agreement in between the accused and the complainant, the initiative for compounding the offence can be unilateral by the complainant himself by filing a petition in regard thereto. There is no law or rule of procedure, which requires that both parties should sign the petition for compounding the offence. Therefore, the moment that the complainant files such an application before the Court it has the immediate effect of acquittal of the case. That is the reason why the composition once effected cannot be withdrawn notwithstanding the fact that the terms of the compromise having been carried out or not. Indeed it has been held by this Court in Kevati Jagaram v. K. Satyavathi and others that compromise has the immediate effect of acquittal and it deprives the Magistrate of his jurisdiction to try the case and the subsequent withdrawal from the compromise by any party can neither affect the acquittal nor revive the jurisdiction of the Magistrate to proceed with the case. ( 8 ) BUT, then, it requires to be seen as to whether the same legal position applies in cases where the permission of the Court is required for compounding the offence. As discussed hereinabove, the permission of the Court is required for such composition, where the offences are of the nature, which affects not only the interest of the individual nay the interest of the society or the State. But insofar as the aggrieved party is concerned, the position seems to be the same regardless of the fact that the offence alleged is compoundable with or without the permission of the Court. A fortiori permission of the Court is not a condition for the compromise between the parties inter se. Therefore, the petition filed by him seeking composition of the offence cannot be withdrawn by him inasmuch as it has the immediate effect of acquittal of the case. The subsequent question as to whether the permission is accorded or not shall have to be seen by the Court having regard to the nature of the offence alleged. ( 9 ) IN the instant case, the de facto complainant seeks to withdraw the petition filed for compounding the offence apparently by mans of a memo filed by the learned assistant Public Prosecutor in regard thereto, on the premise that the consideration for the compromise had not been passed, cannot be entertained. The trial Court, thus, committed an error in having allowed the memo filed by the learned Assistant Public prosecutor seeking to withdraw Crl. M. P. No. 1359 of 2001. The revisional Court having considered the legal position in right perspective overlooked the aspect that the offence alleged in this case being punishable under Section 420 of the IPC is covered by sub-section (2) of Section 320 of the Code and requires the permission of the Court. It is open to the revisional Court at that stage to have considered the said aspect by itself without remitting the matter to the trial Court for performing the necessary ritual of according sanction as is required under sub-section (2) of Section 320 of the Code. It is open to the revisional Court at that stage to have considered the said aspect by itself without remitting the matter to the trial Court for performing the necessary ritual of according sanction as is required under sub-section (2) of Section 320 of the Code. It is not expedient in the interests of justice to remit the matter to the trial Court or to the appellate Court as the case may be, for that purpose having due regard to the length of time occupied, the nature of the offence, and as the aggrieved party agreed to compound the offence, I am of the considered view that it is not that serious a matter where permission can be with held by the Court. The Court can grant the necessary permission for compounding the offence to the de facto complainant having regard to the facts and circumstances of the case on hand. For the above reasons, the irregularity committed by the revisional Court in not having considered the same can be set right here. ( 10 ) IN the result, the Criminal Petition fails and is accordingly dismissed.