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2008 DIGILAW 420 (GAU)

Malay Saha v. State of Tripura

2008-06-06

B.D.AGARWAL

body2008
JUDGMENT B.D. Agarwal, J. 1. A short but an important question of law has been raised in this revision application. The question that is to be answered by this Court is whether a prayer for compounding an offence under Section498A of the Indian Penal Code can be allowed to be compounded on compromise. 2. Heard Shri R. Dutta, learned Counsel for the petitioner and Shri A. Ghosh, learned Addl. Public Prosecutor for the State respondent. 3. Initially this revision application was filed under Section 401 read with Section 397 of the Code of Criminal Procedure (briefly Cr.P.C.) challenging the concurrent Judgments of the courts below convicting the petitioner under Section 498A of the Indian Penal Code ('IPC in short). It may be noted here that the petitioner was convicted under the aforesaid provision of law vide Judgment and Order dated 6.3.2006 passed by the learned Chief Judicial Magistrate, South Tripura, Udaipur in G.R. Case No. 77 of 2004. The said order of conviction was confirmed by the learned Sessions Judge, South Tripura, Udaipur vide Judgment his Judgment dated 26.02.2007 passed in Crl. Appeal No. 46 (3) of 2006. 4. During the pendency of this Criminal Revision a separate application under Section 482 Cr.P.C. was jointly filed by the petitioner and his wife seeking the leave of this Court to allow them to compound the offence on the ground that matrimonial conflict has been amicably resolved and that both the parties are now leading a happy conjugal life. This petition has been registered as Criminal Miscellaneous case No. 137 of 2008 and the same is also being disposed of by this order. 5. As a matter of precaution this Court directed the applicant and his wife to appear in person. Accordingly, both husband and wife appeared before this Court together on 4.6.2008 and during interview the wife reiterated that she has restored the matrimonial relationship and in the interest of the family and their minor children she is not interested to see that her husband is sent behind the bar to undergo imprisonment. It may be mentioned here that the petitioner has been sentenced to undergo simple imprisonment for two years for his conviction under Section 498A UPC. It is also apposite to mention here that the complaint of torture was filed nearly after 12 years of marriage. 6. It may be mentioned here that the petitioner has been sentenced to undergo simple imprisonment for two years for his conviction under Section 498A UPC. It is also apposite to mention here that the complaint of torture was filed nearly after 12 years of marriage. 6. Section 320 Cr.P.C. contains two separate tables of offences which may be compounded by the aggrieved parties. The only difference in the tables are that the offences enumerated in the first table can be compounded by the aggrieved person on his/her on volition, whereas the offence enlisted in the second table can be compounded only with the permission of the court. For the present Sub-section (2) of Section 320 Cr.P.C. is relevant which is reproduced below for ready reference: (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. (emphasis supplied) 7. A bare perusal of Sub-section (2) of Section 320 Cr.P.C. clearly shows that one of the precondition for allowing composition of the offence incorporated in the 2nd table is that such a permission can be granted only during the pendency of the case. In my considered opinion pendency of the appeal against the order of conviction can also be treated as continuation of the criminal proceeding and compromise prayer can even be accepted before the appeal is decided on merit, but certainly not after the matter is finally decided. 8. In the case before me the admitted position is that the petitioner stands convicted under Section498A IPC, which is not in the group of offences which can be compounded by the aggrieved person without or with the permission of the court. This is the first hurdle before me to accede to the prayer of compromise. The next obstruction is that conviction of the petitioner under Section 498A IPC has already been confirmed by the appellate court and, as such, the case cannot be termed as a pending one within the parameters of Section 320(2) Cr.P.C. 9. There are umpreen number of authorities wherein it has been held that the offence, not in the list of compoundable offences, cannot be allowed to be compromised by the court. There are umpreen number of authorities wherein it has been held that the offence, not in the list of compoundable offences, cannot be allowed to be compromised by the court. This legal principle is not only applicable to the offences of physical assault cheating, defamation etc., but it is equally applicable to the offence under Section 498A IPC. Without multiplying authorities in this regard I would refer only three Judgments from the Hon'ble Supreme Court rendered in the cases of B.S. Joshi and Ors. v. The State of Haryana reported in 2003 CriLJ 2028 ; Ramchandra Singh v. State of Bihar reported in (2003) 10 SCC 234 and BadalDeb v. State of Assam reported in (2006) 10 SCC 540. 10. In the case of B.S. Joshi (supra) their lordships were confronted with a question as to whether High Courts can quash a criminal proceeding in exercise of powers conferred under Section 482 Cr.P.C. read with Article 226 and 227 of the Constitution of India if both the parties so desire. It was held that the guidelines laid down in the case of Bhajan Lal (supra) are only illustrative and not inflexible. The Hon'ble Supreme Court quashed the criminal proceeding holding that the embargo prescribed under Section 320 Cr.P.C. does not limit or affect the powers of the court under Section 482 Cr.P.C. Their lordships observed that it is the duty of the court to encourage genuine settlement of matrimonial disputes. It may be mentioned here that quashing petition of the criminal proceeding in the case of B.S. Joshi (supra) was filed even before winding up investigation and filing of final report under Section 173 Cr.P.C. However, in the case in hand the compromise application has been filed after confirmation of the conviction by the appellate court. 11. In the case of Badal Deb (supra) the Hon'ble Apex Court re-stated the legal principle that since offence under Section 498A IPC is non-compoundable no permission to record the compromise can be granted. However, it was observed that the effect of the compromise can be taken into consideration while awarding sentence. With this view the sentence awarded to the accused was reduced to the period already undergone by him. 12. In the case of Ramchandra Singh (supra) three persons were found guilty and convicted under Section 498A and 323 IPC. However, it was observed that the effect of the compromise can be taken into consideration while awarding sentence. With this view the sentence awarded to the accused was reduced to the period already undergone by him. 12. In the case of Ramchandra Singh (supra) three persons were found guilty and convicted under Section 498A and 323 IPC. During the pendency of the appeal the aggrieved woman agreed to compound the offence. Accordingly, the convicts were acquitted from the offence under Section 323 IPC but the sentence awarded under Section 498A IPC was maintained as it was not compoundable. Criminal Revision in the High Court was also dismissed. However, the Apex Court let-off two appellants with the period of imprisonment already undergone by them whereas the third appellant was allowed to go on Probation. 13. This Court also in the case of Saraswati Sutradhar v. State of Tripura reported in (1999) 1 GLR 94 had considered the question whether compromise for an offence under Section 498A IPC can be judicially accepted and held that no such permission can be granted since it would be de-horse to the law which does not permit compounding of such offence. However, the court ordered that the appellant can be released on probation. 14. Upon hearing the learned Counsel for both the sides, I am of the view that recourse adopted by the Hon'ble Apex Court in the cases of Ramchandra Singh and Smt. Saraswati Sutradhar (supra) is the best way to give judicial reprieve to the parties. I am also of the view that if the judicial discretion is not exercised by this Court it would to result into miscarriage of justice as it may lead to separation of the couple and their minor children would be the ultimate victim. 15. For the reasons alluded herein before, the revision application stands dismissed. However, the Miscellaneous application stands partly allowed. The learned Chief Judicial Magistrate, South Tripura, Udaipur is directed to release the convict on Probation of good conduct for a period of one year after obtaining a bond of Rs.5000/- (Rupees five thousand) with one surety of the like amount as per Section 4 of the Probation of Offenders Act, 1958. 16. However, the Miscellaneous application stands partly allowed. The learned Chief Judicial Magistrate, South Tripura, Udaipur is directed to release the convict on Probation of good conduct for a period of one year after obtaining a bond of Rs.5000/- (Rupees five thousand) with one surety of the like amount as per Section 4 of the Probation of Offenders Act, 1958. 16. The petitioner is directed to appear in the trial court within a period of four weeks from today with his surety and execute the bond accordingly, failing which the order of conviction shall stand restored. The Registry is directed to transmit a copy of this Judgment/Order to the trial court forthwith. Application dismissed.