Thankamma v. State of Kerala, Represented by Sub Inspector of Police
2006-08-08
K.S.RADHAKRISHNAN, V.RAMKUMAR
body2006
DigiLaw.ai
Judgment :- Radhakrishnan, J. This matter has been placed before us on a reference by Justice R. Basant doubting the correctness of the view expressed by another learned Judge of this Court in Baiju v. S.I. Police and another, ILR 2006 (2) Kerala 747. Learned Judge in his reference order posed the question as to whether a non-compoundable offence be legally compounded by the victim of the offence and such composition be accepted by criminal courts exercising original, appellate or revisional powers under the Criminal Procedure Code. 2. Learned Single Judge while deciding Biju's case exercised his revisional power under Section 397 Cr.P.C. and compounded the offences under sections 143, 147 and 148 of the Indian Penal Code which are otherwise non-compoundable either under subsection (1) or under subsection (2) of section 320 of the Code of Criminal Procedure. While accepting the compounding application learned single Judge expressed the following view: "It can safely be concluded that where the interest of the public are not rightly affected, the complainant may be permitted to come to a compromise with the party, against whom he had originally complained of, and the offence being those mentioned under Section 320 of the Code. But in case of non-compoundable offence, and not mentioned under Section 320 of the Code, the Court should consider the facts and circumstances of each case and allow the parties to compromise, thereby to restore an amicable and harmonious relationship between the parties, which otherwise would likely to result in an enduring feud. In view of the above basic principles laid down by the Apex Court, a well as to maintain amity and harmony among the persons involved in a crime, it is necessary for the Court to grant permission to compound the offence, even if they are not compoundable as per the procedure, and also that such offence does not seriously affect the interest of the public at large." Revision petitioners herein have filed Crl.M.Appln.No.6613 of 2006 under section 320 of the Code of Criminal Procedure for compounding the offence under section 498 (A), 506(1), 342, 323, 324 read with section 34 IPC stating that the difference of opinion between the parties the parties have been settled and the husband and wife have joined and are staying together as husband and wife, consequently, prayed that the offences alleged against the petitioners be compounded. 3. Sri.
3. Sri. Peeyus A. Kottam, counsel appearing for the revision petitioners placed reliance on the judgment of the learned single in Baiju's case (supra) and submitted that interests of justice demands that the court should accept the request for compounding and the offences the compounded and the accused persons be acquitted of all the charges. Sri. P.G. Thampi, Director General of Prosecutions who appeared for the State and opposed the prayer of the petitioners and submitted that the offence under section 498(A) IPC cannot be compounded since that offence has not been included either under subsection (1) or under subsection (2) of Section 320 of the Code of Criminal Procedure. Counsel submitted in any view of the matter this court exercising jurisdiction under section 397 of the Code of Criminal Procedure cannot compound an offence which is otherwise a non-compoundable under section 320 of the Code of Criminal Procedure. 4. Apex Court in Bankat and another v State of Maharashtra, (2005) 1 SCC 343) has clearly stated that for compounding of the offences punishable under IPC, a complete scheme is provided under Section 320 of the Code. Sub-section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in column 3 of the said table. Further, sub-section (2) provides that the offences mentioned in the table could be compounded by the victim with the permission of the court. As against this, sub-section (9) specifically provides that "no offence shall be compounded except as provided by this section". In view of the aforesaid legislative mandate the apex court held that only the offences which are covered by Table 1 or Table 2 as stated above can be compounded and the rest of the offences punishable under IPC cannot be compounded. 5. The question that is posed for our consideration is whether criminal courts exercising original, appellate or revisional powers under the Code of Criminal Procedure can bypass section 320 Cr.P.C. and compound an offence which is otherwise non-compoundable. Our answer is in the negative, but then the question is whether the inherent power conferred on the High Court under section 482 Cr.P.C. could be invoked to compound an offence which is otherwise non-compoundable under Section 320 Cr.P.C. and quash the criminal proceedings. 6. Primary objective of criminal law is the punishment of the offender.
Our answer is in the negative, but then the question is whether the inherent power conferred on the High Court under section 482 Cr.P.C. could be invoked to compound an offence which is otherwise non-compoundable under Section 320 Cr.P.C. and quash the criminal proceedings. 6. Primary objective of criminal law is the punishment of the offender. Crime is punished for the protection of the public, not merely because of the injury caused to the individual. Notwithstanding the consent of the individual, against whom they are, committed there are many acts which render the doer criminally responsible. Majority of rules which define certain behaviour as crime are founded in various penal laws. Indian Penal Code constitutes substantive criminal law which says that every person shall be liable to punishment under the Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. Now a days even the most liberal minded penologist would agree that the aim of punishment is the protection of society. Penance and fines were once preferred methods of punishment, depending upon the gravity of the offence. Compounding, pardon, probation, remission etc. are evidently intended to achieve a social objective. Possibly the Legislature in its wisdom felt that liberty be given to persons who are arrayed in the third column of the table provided in subsection (1) of Section 320 to compound the offences mentioned in column two. Resultantly, only the persons mentioned in column three alone can legally compound the offences though any person may set the criminal law in motion. Victims however cannot be compelled to accord sanction for compounding the offences mentioned in subsection (1) of section 320. No permission of the court is necessary to compound the offences mentioned in subsection (1) of section 320 and the court has nothing to do, but to accept the request for compounding and record a judgment of acquittal. However, with regard to offences mentioned in subsection (2) of section 320, they can be compounded only with the permission of the court over and above the sanction accorded by the victim. The court can decide as to whether permission has to be granted or not even if the offence is compoundable under subsection (2) of section 320 and the victim has no objection in compounding the offence. 7.
The court can decide as to whether permission has to be granted or not even if the offence is compoundable under subsection (2) of section 320 and the victim has no objection in compounding the offence. 7. The effect of composition is provided under subsection (8) of section 320 which says that the composition of an offence under section 320 shall have the effect of an acquittal of the accused with whom the offence has been compounded. Further, the legislative intention has been clearly depicted by employing a command in a negative form under subsection (9) of section 320 stating that no offence shall be compounded except as provided under section 320. The law is therefore clear that when subsections (1) and (2) of Section 320 of the Code specifically enumerates the offences which are compoundable without the permission of the court and compoundable with the permission of the court and subsection (9) mandates that no offence shall be compounded except as provided by that section, the original court, appellate court and the revisional court have no power to grant permission to compound a non-compoundable offence. We are therefore of the view that Baiju's case has not been correctly decided and hence we overrule that decision. 8. We may now examine whether the inherent powers conferred on the High Court under section 482 of the Code could be invoked to compound an offence which is otherwise non-compoundable. Section 482 Cr.P.C. confers a separate and independent power on the High Court to pass orders ex debito justitiae to secure the ends of just and to prevent abuse, of the process of court. Inherent power is wide in nature and this provision in Cr.PC having been made to secure ends of justice or to prevent abuse of the process of Court, such power is to be exercised with great restraint. Section 482 is saving of inherent powers of High Court which says that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. 9. Apex Court in State of M.P. v. Dr.
9. Apex Court in State of M.P. v. Dr. Krishna Chandra Saksena, (1996) 3 SCJ 665) held that interference under section 482 Cr.P.C. for quashing a criminal proceeding should be done very sparingly and in exceptional cases. In G. Sagar Suri v. State of U.P. (2000) 2 SCC 636) apex court has stated that before process a criminal court has to exercise a great deal of caution. In State of Haryana v. Bhajan Lal, (1992) 1 Suppl. SCC 333) apex court has laid down various guidelines to quash FIR or criminal prosecution. Apex court in B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 held that the powers under Section 482 have no limits, but cautioned that where there is more power, it becomes necessary to exercise utmost care and caution while invoking such power. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. 10. Section 498-A of the Indian Penal Code comprising of an independent chapter was inserted by the Criminal (Second Amendment) Act, 1983 (46 of 1983) with effect from 25th December, 1983. Introduction of chapter XX-A reflects the anxiety of the Parliament to extend protection to the weaker spouse. When once the Legislature though it fit to make the offence under Section 498-A introduced under Chapter XX-A as non compoundable, courts have to bestow serious attention as to whether in a given case such offence could be compounded in exercise of powers under section 482 of the Code of Criminal Procedure. 11. Apex court in B.S. Joshi's case (supra) opined that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent torture of a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The court further held that the hyper technical view would be counterproductive and would act against interests of women and against the object for which this provision was added and there is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. 12.
The court further held that the hyper technical view would be counterproductive and would act against interests of women and against the object for which this provision was added and there is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. 12. The courts have generally taken a liberal attitude for compounding the offences committed by spouse as well as their relations in matrimonial disputes. The legislative mandate of reconciliation by courts is reflected in section 23(2) of the Hindu Marriage Act, 1955 and various other legislations dealing with personnel laws. The apex court in V.K. Gupta v. Smt. Nirmala Gupta (1979) 4 SCC 258) reminded the courts that it is fundamental that reconciliation of a ruptured marriage is the first essay of the Judge, aided by counsel in their noble adventure. Court alerted that the sanctity of marriage is in essence, the foundation of civilization and, therefore, court and counsel owe a duty to society to strain to the utmost to repair the snapped relation between the parties. When the parties are seeking to compound the offence under Section 498-A of the IPC the approach of the court would be to save the institution of marriage since the sanctity of marriage is a cornerstone of civilization and to bring peace and happiness in the society. 13. Courts have however, to be guarded that section 482 is not misused so as to compound the offence under section 498-A which is otherwise non-compoundable. The court should examine whether request is bona fide and not intended to get out of the clutches of law. Each case has to be decided on the facts and circumstances of that case. Courts must see that the power of the court under section 482 is not misused. We are therefore of the view that this court cannot exercise the powers under section 397 Cr.P.C. so as to compound a non-compoundable offence under section 320 Cr.P.C. and in appropriate cases the courts could exercise its inherent powers under section 482 to save the institution of marriage. 14. The accused persons in the present case are relatives of the husband of PW-1. Prosecution case was that relatives had mentally and physical tortured her demanding dowry.
14. The accused persons in the present case are relatives of the husband of PW-1. Prosecution case was that relatives had mentally and physical tortured her demanding dowry. Consequently they were charged for the offences punishable under sections 498-A, 506(1), 342, 323 and 324 read with section 34 IPC. Trial court found them guilty under sections 498 (A), 506(1), 342, 323 read with section 34 IPC which was confirmed by the Sessions Court against which this criminal revision petition was preferred. Later, an application was filed in the criminal revision for compounding the offence which we have already held cannot be entertained. Petitioners however preferred another application Crl. M.A.No.7103/06 under section 482 C.P.C. to compound the offence and quash the criminal proceedings. Petitioners have stated in that petition that the husband and wife have reunited and they are living peacefully with their daughter and family members. Counsel submitted that due to some difference of opinion the couple were staying separately and now they have reunited happily and if the punishment is given effect to the mother in law will have to undergo one year's simple imprisonment, so also brother and sisters of the husband. Counsel submitted, they would not be able to lead a happy married life if mother in law and relatives are punished and are to suffer jail sentence 15 Considering the facts and circumstances of the case we feel it would be appropriate to accept the request of the petitioners for compounding the offences so that the couple could lead a happy married life and the institution of marriage could be saved and that ends of justice would be met if we exercise powers under section 482 Cr.P.C. We are therefore inclined to allow Cr.MA.7103 of 2006 and compound all the offences charged against the accused persons and quash criminal proceedings accordingly and the convicted persons are acquitted and set at liberty. Crl.MA.6613 of 2006 however, stands dismissed. Crl.RP.2367 of 2005 is disposed of as above.