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2008 DIGILAW 2599 (RAJ)

Gokul Chand v. State of Rajasthan

2008-11-26

RAGHUVENDRA S.RATHORE

body2008
ORDER:- This criminal misc. petition has been filed by the complainant-petitioner challenging the order dated 12th May: 2000 passed by Special Court (Sati Niwaran) Rajasthan and Additional Sessions Judge, Jaipur, in criminal appeal No. 153/98, whereby the learned Court had partly (sic) application filed by the complainant-petitioner by compounding the offence under Section 420, IPC and not in respect of the other offences. 2. The learned counsel for the complainant-petitioner submits that he had made efforts to contact the client, but he has not responded nor he has any instructions from him. This misc. petition was filed in the year 2000 and, thereafter it was decided by the High Court on 24th August, 2004, whereby the same was allowed. Thereafter, the State of Rajasthan filed an appeal before the Honble Supreme Court (l 15/2008), arising out of the SLP (Criminal) No. 3582 of 2005. The appeal was heard and decided by the Honble Apex Court on 15th January, 2008 with the following order:- "It is not in dispute that the offences involved in this case are non-compoundable except the offences under Sec. 420. No reasons have been given in the impugned judgment for making them compoundable. Therefore, we set aside the impugned judgment and remit the matter to the High Court for fresh disposal in accordance with law." 3. In view of the aforesaid directions issued by the Honble Supreme Court, for disposal of the matter in accordance to law, I deem it proper to decide this petition on merits. 4. Brief facts giving rise to this petition are that the petitioner-complainant filed a complaint on 6th February, 1982 against Rajendra Kumar and Suresh Kumar alias Chhaju Lal for the offences under Ss. 420, 467, 468, 471 and 120-B, I.P.C. The said complaint was then sent for investigation under S. 156(3), Cr. P.C. to the Police Station Vishwakarma Industrial Area, Jaipur. After investigation, the police submitted charge-sheet against Rajendra Kumar and Suresh Kumar alias Chhaju Lal for the offences under Ss. 420, 467, 48, 471 and 120B, I.P.C. The learned trial Court framed charges and proceeded with the trial. On conclusion of the trial, the accused-Rajendra Kumar was convicted for offences under Ss. 420, 467 and 468, I.P.C. and Suresh Kumar alias Chhaju Lal for the offence under S. 420 read with S. 109, I.P.C. 5. 420, 467, 48, 471 and 120B, I.P.C. The learned trial Court framed charges and proceeded with the trial. On conclusion of the trial, the accused-Rajendra Kumar was convicted for offences under Ss. 420, 467 and 468, I.P.C. and Suresh Kumar alias Chhaju Lal for the offence under S. 420 read with S. 109, I.P.C. 5. Being aggrieved of the judgment passed by the learned trial Court, whereby the accused persons were convicted and sentenced on 12th July, 1996, they preferred an appeal before the learned Sessions Judge, Jaipur City, Jaipur. The said appeal was transferred to the Court of Special Judge (Sati Niwaran), Jaipur City, Jaipur. It was during the pendency of the said appeal, that an application came to be filed by the parties on 5th May, 2000 with the prayer that they have entered into a compromise and, therefore, the proceedings be dropped. The learned appellate Court, after verifying the compromise and on appearance of both the parties, passed an order on 12th May, 2000 wherein he had verified and accepted the compromise in respect of the offence under S. 420, I.P.C. and also ordered that the compromise be placed on record. Thereafter, the appeal was posted for arguments. 6. The case of the complainant-petitioner is that the learned Court below in the instant case, have failed to appreciate that parties have entered into a compromise in this case. According to the complainant-petitioner, looking to the facts and circumstances of the case and the fact that the dispute between the parties have been amicably settled, the learned appellate Court should have considered the case as a special one and in the peculiar circumstances the matter should have been dropped. On the other hand, the learned Public Prosecutor has submitted that the learned appellate Court had not committed any illegality in passing the impugned order, whereby he had verified and accepted the compromise between the parties to the extent of the of~ fence under S. 420, I.P.C. because the other offences are not compoundable. Hence, it was not within the jurisdiction of the appellate Court to have accepted the compromise in respect of all the offences and dropped the proceedings by compounding the same. The powers of the Court with regard to compounding of cases are specifically and clearly given out under S. 320, Cr. P.C. 7. Hence, it was not within the jurisdiction of the appellate Court to have accepted the compromise in respect of all the offences and dropped the proceedings by compounding the same. The powers of the Court with regard to compounding of cases are specifically and clearly given out under S. 320, Cr. P.C. 7. I have given my thoughtful consideration to the facts and circumstances of the case and also the rival submissions made by the parties." 8. Before considering the relevant case law, on the question involved in this case, it is necessary to refer to the relevant provisions of the Code of Criminal Procedure. Section 320 of the Code of Criminal Procedure, deals with the compounding of the offences. "Section 320 Compounding of offences. (1) The offence 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 S. 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. I (9) No offence shall be compounded except as provided by this section." A perusal of the aforesaid provisions, shows that the offences specified .in the Table under sub-section (1) are compoundable without the permission of the Court, But the offences mentioned in the Table under sub-section (2) can be compounded only with the permission of the Court. The offences which are not specified in the Table cannot be compounded. 9. The offences which are not specified in the Table cannot be compounded. 9. The case of Ramlal v. State of J. & K. (1999) 2 SCC 213 : 1999 Cri W. 1342 wherein the case of Mahesh Chand v. State of Rajasthan, 1990 (Supp) SCC 681: 1989 Cri W 121 had been referred to the Apex Court had; observed, in para 2, as under: "We cannot accede to the request for compounding iI1regard to the offence under S. 326. LP.C. as the same is a non-compoundable offence." 10. Where the learned counsel for the petitioner, in the case of Ramlal (supra), had invited the attention to the decision rendered in the case of Y. Suresh Babu v. State of Andhra Pradesh (1987) 2 JT (SC) 361, was observed by the Apex Court that in that very case it has been specifically observed that it "shall not be treated as a precedent." 11. The Apex Court had very categorically observed, in para 3, of the case of Ramlal (supra), that "We are unable to follow the said decision as a binding precedent. Section 320 which deals with "Compounding of offences" provides two tables therein, one containing descriptions of offences which can be compounded by the person mentioned in it, and the order containing descriptions of offences which can be compounded with the permission of the Court by the persons indicated therein. Only such offences as are included in the said two tables can be compounded and none-else. Sub-section (9) of S. 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms." "320(9) No offence shall be compounded except as provided by this section." 12. Furthermore, the Apex Court in para 4 observed as "It is apparent that when the decision in Mahesh Chand v. State of Rajasthan (supra) was rendered the attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was the attention of the learned Judges was rendered the decision in Y. Suresh Baboo drawn. Hence, those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. The offence under S. 326, I.P.C. is, admittedly, non-compoundable and hence, we cannot accede to the request of the learned counsel to permit the same to be compounded. 13. Hence, those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. The offence under S. 326, I.P.C. is, admittedly, non-compoundable and hence, we cannot accede to the request of the learned counsel to permit the same to be compounded. 13. Therefore, in the case of Ramlal (supra). Itself, relied upon by the learned counsel for the petitioners, it has been made clear by the Apex Court that the decisions of Y. Suresh Baboo and Mahesh Chandra (supra), are not binding. Only such offences which are included in the said two tables under S. 320, Cr. P.C. can be compounded and none-else." 14. The, Hq,rible Supreme Court in the case of Surendra Nath Mohanty v. State of Orissa (1999) p sec 238 : 1999 Cri W 3496 decided by a larger Bench, while dealing with the same question as in the instant case, held as under:- "In our view, the submission of the learned counsel for the respondent requires to be accepted. For compounding of the offences punishable under the Indian Penal Code, a complete scheme is provided under S. 320 of the Code of Criminal Procedure, 1973. Sub-section (1) of S. 320 provides that the offences mentioned in the table provided there under 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, subsection (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 Table 2 as stated above, can be compounded and the rest of the offences punishable under the Indian Penal Code, could not be compounded.” 15. Furthermore, the Honble Apex Court in the case of Surendra Nath Mohanty (supra), observed that the decision in the case of Y. Suresh Babu (supra), is per incuriam. Furthermore, the Honble Apex Court in the case of Surendra Nath Mohanty (supra), observed that the decision in the case of Y. Suresh Babu (supra), is per incuriam. It held as under: "In the case of Y. Suresh Babu, the Court has specifically observed that the said case "shall not be treated as a precedent." The aforesaid two decisions are based on facts and in any set of circumstances, they can be treated as per incuriam as pointed attention of the Court to sub-section (9) of S. 320 was not drawn. Hence, the High Court rightly refused to grant permission to compound the offence punishable under S. 326." 16. Later on the Honble Supreme Court in the case of Bankat v. State of Maharashtra (2005) 1 SCC 343 : 2005 Cri W 646 reiterated the afore mentioned principles and held that in view of sub-section (9), of S. 320, Cr.P.C., which is a legislative mandate, only the offences which are covered by Tables 1 and 2 provided under S. 320, can be compounded and the rest of the offences punishable under the Indian Penal Code cannot be compounded. 17. Therefore, the Apex Court had followed the above referred judgments, of Ramlal (supra) and Surendra, North Mohanty (supra), and held that the case of Mahesh Chand (supra) and Y. SuresliBabu (supra), are per incuriam. The Hanole Supreme Court had held in para 14 of the case of Bankat (sura), as under:- "We reiterate that the course adopted in Y. Suresh Babu and. Mahesh Chand case was not in accordance with law." 18. The Apex Court had again, in the case of Badrilal v. State of M.P. (2005) 7 SCC 55 , wherein a joint petition of compromise was filed in an offence under S. 307, I.P.C., held that a compromise cannot be recorded in such a case. In para 4 of the said judgment, it was,held as under ::- "A joint petition of the compromise has been filed on behalf of the parties, in which prayer has been made for recording the compromise. The offence under S. 307, I.P.C. is not a compoundable one, therefore, compromise cannot be recorded but at the same time it is well settled that while awarding sentence the effect of compromise can be taken into consideration. The offence under S. 307, I.P.C. is not a compoundable one, therefore, compromise cannot be recorded but at the same time it is well settled that while awarding sentence the effect of compromise can be taken into consideration. It has been stated that the appellant has remained in custody for a period of about 14 months and there is no allegation that he assaulted the deceased. In the facts and circumstances of the case, we are of the view, that end of justice should be met in case, the sentence of imprisonment awarded against the appellant by the trial Court and reduced by the High Court be further reduced to the period already undergone." 19. In a case relating to the offence under S. 326, I.P.C., it was categorically held in the case of Jetha Ram v. State of Rajasthan (2006) 9 SCC 255 . by the Apex Court, that the said offence is not compoundable, as such, it is not possible to record the compromise. 20.In regard to the question as to whether High Court can direct the trial Court to grant permission to compound a offence which is a non-compoundable offence under the Code, a Full Bench decision of this Court, in the case of Mohan Singh v. State. 1993 (3r WLC (Raj) 569: 1993 Cri W 3193 had- directly answered in the negative. The Full Bench was considering the offence under S.326. I.P.C. and held that in view of provisions contained in sub-section (9) of S. 320 of the Cr. P.C., the High Court cannot permit to compound the offence which is not compoundable under sub-section (1) or subsection- (2) of S. 320. Cr. P.C. 21. To add the last, in the series of judgments passed by the Honble" Apex Court that the offences enumerated under, S.320, Cr.P.C, can, only be compounded by a Court of law, is the case of Mohd. Abdul Sufan Laskar v. State of Assam, decided on 25th August, 2008 ( (2008) 9 scc 333 ) : (2008 AIR SCW 5755) wherein it had reiterated the principle laid down in the earlier judgments. 22. For the aforesaid reasons: I am of the considered opinion that the learned Court, who is holding the trial or considering an appeal can only compound the offence which has been specifically given in the tables mentioned under S. 320. Cr. 22. For the aforesaid reasons: I am of the considered opinion that the learned Court, who is holding the trial or considering an appeal can only compound the offence which has been specifically given in the tables mentioned under S. 320. Cr. P.C. It is noteworthy that sub-section (9) of S. 320. Cr.P.C. provides that no offence shall be compounded except as provided by that section. Therefore, this Court in exercise of its inherent powers under S. 482, Cr.P.C., cannot pass an order which has been Specifically prohibited under the Code of Criminal Procedure. 23. Consequently, this criminal in is petition is devoid of any merit and the same is dismissed. 24. Record of the trial Court be sent forthwith. Petition Dismissed.