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2011 DIGILAW 2758 (RAJ)

Sikandar v. State of Rajasthan

2011-12-14

SANDEEP MEHTA

body2011
Hon'ble MEHTA, J.—The present revision petition has been filed by the petitioners challenging the order dated 26.8.2011 passed by the Sessions Judge, Jodhpur in Criminal Appeal No. 257/2011, whereby the application filed by the petitioners and the respondent No.2 seeking permission to compromise the offence under Section 324 IPC before the trial Court has been rejected. 2. Learned counsel for the petitioners submits that in this case the offence under Section 324 IPC was committed in the year 2007. He submits that though by the Code of Criminal Procedure (Amendment Act), 2005 (No.25/2005), the offence under Section 324 IPC was excluded from the Table of Compoundable Offences shown under Section 320 Cr.P.C. by Section 28(a) of the said Amending Act but it is contended that the said amendment in the Table, by virtue of Section 28(1) of the Amendment Act, was not notified, thus it is submitted that since the amendment, whereby Section 324 IPC was taken out from the purview of compoundable offence, was not notified, therefore it is prayed that as on the date when the offence was committed, i.e. in the year 2007, the position of Section 320 Cr.P.C. continued as it was prior to the Amending Act of 2005. Thus, it is submitted that as in the year 2007 the offence under Section 324 IPC continued to be a compoundable offence, the learned Appellate Judge has erred in rejecting the application for compounding the offence under Section 324 IPC by holding that the offence under Section 324 IPC was not compoundable after 23.6.2006. 3. Learned counsel for the petitioners has placed reliance on a decision of the Hon'ble Apex Court in the case of Manoj & Anr. vs. State of Madhya Pradesh (2008) 3 SCC (Cri.) 699 for the purpose of canvassing the argument that the amendment to Section 320 Cr.P.C., as per the Amendment Act No. 25/2005 has not been brought to force, i.e. the same has not been notified and thus the offence under Section 324 IPC still continued to be compoundable by the permission of the Court on the date on which the offence was committed, i.e. in the year 2007. 4. Learned Public Prosecutor opposes the prayer made by the learned counsel for the petitioners. 5. 4. Learned Public Prosecutor opposes the prayer made by the learned counsel for the petitioners. 5. I have given my thoughtful consideration to the rival arguments advanced at the bar and have carefully perused the impugned order as well as the judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the petitioners. 6. For the purpose of consideration of the controversy in issue, it has to be seen as to what was the effect of the amendment No. 25/2005 made in the code of Criminal Procedure. The Amending Act No. 25/2005 was notified in the Gazette of India by the Notification dated 21.6.2006, which reads as under: "S.O. 923 (E).—In exercise of the powers conferred by sub-section (2) of Sec. 1 of the Code of Criminal Procedure (Amendment) Act, 2005 (No.25/2009), the Central Government hereby appoints the 23.6.2006, as the date on which the provisions of Section 16, 25, 28(a), 28(b), 38, 42,(a), 42(b), 42(f) and (iv) and 44(a), shall come into force." 7. Thus, as per this Notification, the provisions of the Amending Act, excluding the provisions under Sections 16, 25, 28(a), 28(b),38, 42(a), 42(b), 42(f) and (iv) and 44(a) of the Amending Act were enforced. The amendment in the Table to Section 320 Cr.P.C. was made vide Section 28(a) of the Amending Act, whereby the offence under section 324 IPC was omitted from the Table of offences under Section 320 Cr.P.C. As is apparent from the Notification reproduced above, Section 28(a) of the Amending Act No. 25/2005 was not notified. Meaning thereby that Section 324 IPC remained to be compoundable even after the Amendment Act No. 25/2005. 8. The Hon'ble Apex Court has unequivocally held that Section 324 IPC continued to be compoundable uptil the decision of the Hon'ble Apex Court which was passed on 25.9.2008. Now the amendment has been brought into 25.9.2008. Now the amendment has been brought into force in the year 2009 by the Code of Criminal Procedure (Amendment) Act No. 5/2009. 9. The upshot of the above discussion is that the impugned order dated 26.8.2011 passed by the learned Sessions Judge rejecting the application filed by the petitioners and the respondent No.2 for compounding the offence under Sec. 324 IPC whilst observing the offence under Sec. 324 IPC was not compoundable subsequent to 23.6.2006, cannot be said to be a legal order. 10. 10. Accordingly, the revision petition succeeds; the impugned order dated 26.8.2011 passed by the learned Sessions Judge, Jodhpur in Criminal Appeal No. 257/2011 is set aside and the learned Sessions Judge is directed to pass a fresh order on the compounding application filed before him. The stay petition stands disposed of.