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2012 DIGILAW 1475 (PAT)

Dev Kant Singh v. State of Bihar

2012-10-17

BIRENDRA PRASAD VERMA

body2012
CAV ORDER 1. The petitioners, who are full brothers, besides 5 others, were put on trial in connection with G.R.No. 974 of 1996/Tr. No. 415 of 2003 with respect to an occurrence alleged to have taken place on 7.7.1996 at 7 A.M. in the morning. The opposite party no.2 Hari Shankar Mahto lodged aforesaid criminal case with respect to the aforesaid occurrence dated 7.7.1996 and claimed that he was assaulted by the accused persons including these two petitioners, as a result of which he had sustained injuries on his person. On conclusion of trial, by the judgment and order dated 20.2. 2003 passed by the learned Judicial Magistrate, 2nd Class, Samastipur, in aforesaid G.R. No. 974 of 1996/ Tr. No. 415 of 2003, the petitioner no.1 Dev Kant Singh was held guilty for charges under Sections 341, 323 and 504 of the Indian Penal Code and petitioner no.2 Uma Kant Singh was held guilty for charges under Sections 341 and 324 of the Indian Penal Code. However, 5 other co-accused persons were acquitted for the charges framed against them. Petitioner no.2 Uma Kant Singh was also acquitted for charge under Section 379 of the Indian Penal Code. Accordingly, petitioner no.1 Dev Kant Singh was sentenced to undergo Simple Imprisonment for three months for his conviction under Section 341, Simple Imprisonment for six months for his conviction under Section 323 and Simple Imprisonment for six months for his conviction under Section 504 of the Indian Penal Code. Similarly, petitioner no.2 Uma Kant Singh was sentenced to undergo Simple Imprisonment for a period of three months for his conviction under Section 341 and Simple Imprisonment for one year for his conviction under Section 324 of the Indian Penal Code. The sentences passed against the petitioners were directed to run concurrently. 2. The petitioners, being aggrieved by the aforesaid judgment of conviction and order of sentence passed by the learned trial court, preferred Cr. Appeal No. 24 of 2003, which has finally been dismissed with certain observations and modifications in the judgment of conviction and order of sentence, by the impugned judgment dated 4.8.2008 passed by the learned 1st Additional sessions Judge, Samastipur. By the impugned judgment, the learned lower appellate court has set aside the judgment of conviction and order of sentence passed against petitioner no.1 Dev Kant Singh for offences under sections 504 and 341 of the Indian penal Code. By the impugned judgment, the learned lower appellate court has set aside the judgment of conviction and order of sentence passed against petitioner no.1 Dev Kant Singh for offences under sections 504 and 341 of the Indian penal Code. Similarly, the judgment of conviction and order of sentence passed against petitioner no.2 for offence under Section 341 of the Indian penal Code has also been set aside. However, conviction under section 323 of the Indian Penal code against petitioner no.1 and conviction under Section 324 of the Indian Penal Code against petitioner no.2 have been affirmed, but the sentence under Section 323 of the Indian Penal Code against the petitioner no.1 has been reduced to three months and similarly sentence under Section 324 of the Indian Penal Code against the petitioner no.2 has been reduced to six months, which are subject matter of challenge in the present revision application. 3. During the pendency of this application, both the petitioners surrendered on 22.9.2008 before the learned trial court for serving out their sentence, but both the petitioners were directed to be released on bail by an order dated 30.9.2008 passed in the present proceeding by a Bench of this Court, and, accordingly, they are enjoying the privilege of bail. 4. During the pendency of the present revision application, the petitioners as also the informant, who is also the victim, have entered into compromise and they have amicably resolved the entire dispute amongst themselves. In view of the aforesaid compromise, the petitioners filed I.A.No. 1591 of 2012 with a prayer to implead Hari Shankar Mahto, the informant of the criminal case, who is the person to whom hurt was caused during the aforesaid occurrence dated 7.7.1996, as opposite party no.2. By an order dated 14.9.2012 passed by this Court, aforesaid I.A. No. 1591 of 2012 was allowed, and the informant (victim) was permitted to be impleaded as opposite party no.2 in the main criminal revision application. The informant (opposite party no.2) has entered appearance through a lawyer by filing a Vakalatnama. 5. In the present proceeding Interlocutory Application No. 1592 of 2012 has been filed on behalf of the informant (opposite party no.2) under Section 320 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), seeking permission of this Court to compound the case with the petitioners. 6. 5. In the present proceeding Interlocutory Application No. 1592 of 2012 has been filed on behalf of the informant (opposite party no.2) under Section 320 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), seeking permission of this Court to compound the case with the petitioners. 6. Interlocutory Application No. 1593 of 2012 has jointly been filed by the petitioners as also the opposite party no.2 under Section 320 Cr.P.C. stating therein that with the intervention of well-wishers of the parties the matter has been compromised and good feelings have restored between the informant (injured) and the petitioners. A prayer has jointly been made by them that the compromise petition may be accepted and accused persons may be acquitted of the charges. The aforesaid I.A. No. 1593 of 2012 has been signed by the accused- petitioners and their lawyer at one side and the informant (opposite party no.2) and his lawyer at the other side. 7. Section 320 Cr.P.C. provides for compounding of the offences. Under section 320 (1) Cr.P.C., the offence under Section 323 of the Indian penal Code can be compounded with the person to whom hurt was caused. Now, admittedly, so far petitioner no.1 is concerned, his conviction has been affirmed by the learned lower appellate court only for offence under section 323 of the Indian Penal Code. Therefore, there is no difficulty in accepting the compromise arrived at between petitioner no.1 and opposite party no.2 (victim), so far offence under section 323 of the Indian Penal Code is concerned. However under Section 320 (2) Cr.P.C. offence under section 324 of the Indian Penal Code was also compoundable at the relevant time, but as per mandate of section 320 (2) Cr.P.C., offence under section 324 of the Indian penal Code could have been compromised only with the permission of the court with the person to whom hurt was caused. On 7.7.1996 when the occurrence in question is said to have taken place, the offence under Section 324 of the Indian penal Code was also compoundable in terms of Section 320(2) Cr.P.C. But, by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005) Section 320(2) Cr.P.C. was amended and from the table incorporated under section 320 (2) Cr.P, .C. section 324 of the Indian Penal Code was deleted. The aforesaid Amending Act 25 of 2005 received the Presidential assent on 23.6.2005 and was also published in the Gazette of India on the same day. 8. According to learned counsel appearing on behalf of the petitioners and learned Senior counsel appearing on behalf of the opposite party no.2, so far aforesaid amendment of Section 320(2) Cr.P.C. with respect to Section 324 of the Indian Penal Code is concerned, that was amended by Section 28 (a) of the aforesaid Amending Act 25 of 2005. According to them, the Amending Act 25 of 2005 came into force with effect from 23.6.2006. Therefore, even though Section 324 of the Indian Penal Code is no longer a compoundable offence, after the aforesaid amendment, yet at the relevant time when the occurrence had taken place, offence under section 324 of the Indian Penal Code was a compoundable offence. Thus, according to them, compromise petition filed on behalf of both the parties is fit to be allowed in terms of Section 320 (6) Cr.P.C.and the accused persons are entitled to be acquitted in terms of Section 320 (8) Cr.P.C. 9. In support of the above contention, they have placed reliance upon the judgment of Hon’ble Apex Court in the case of Manoj and Another Vs. State of Madhya Pradesh [(2008) 3 SCC (Cri.) 699] and Mohd. Abdul Sufan Laskar and Others Vs. State of Assam [(2008) 3 SCC (Cri.) 770]. In those two cases also exactly similar issues came up for consideration before the Hon’ble Apex Court. The accused was convicted for offence under Sectin 324 of the Indian penal Code, besides others and when the matter was pending consideration before the Hon’ble Apex Court, they entered into compromise. The Hon’ble Apex Court allowed their petition of compromise on the ground that occurrence had taken place prior to coming into force of the Criminal Procedure (Amendment) Act, 2005 (25 of 2005). 10. In view of the aforesaid judicial pronouncements made by the Hon’ble Apex Court, referred to above, I.A.No. 1592 of 2012 filed on behalf of the informant (Opposite party no.2) seeking permission of this Court to enter into compromise with the accused persons is allowed and permission is accorded to compromise the offence under Section 324 of the Indian Penal Code. In view of the aforesaid judicial pronouncements made by the Hon’ble Apex Court, referred to above, I.A.No. 1592 of 2012 filed on behalf of the informant (Opposite party no.2) seeking permission of this Court to enter into compromise with the accused persons is allowed and permission is accorded to compromise the offence under Section 324 of the Indian Penal Code. Consequently, I.A. No. 1593 of 2012 filed on behalf of the petitioners and opposite party no.2 (informant), whereby they have entered into compromise with respect to offences in question is also allowed in exercise of powers under Section 320(6) Cr.P.C. 11. In the result, conviction of the petitioners, recorded by the learned courts below are set aside and, accordingly, the petitioner no.1 is acquitted of charge under Section 323 of the Indian Penal Code and petitioner no.2 is acquitted of charge under Section 324 of the Indian Penal Code. They are also discharged from the liability of their bail bonds. 12. The Cr. Revision application as also both the interlocutory applications stand finally disposed of.