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2016 DIGILAW 1166 (ORI)

Rohita Naik v. State of Orissa

2016-11-29

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. Mr. D. Pattanaik, learned counsel files power on behalf of the petitioner Rohita Naik and Mr. P. Behera, learned counsel files power on behalf of the victim Smt. Ramarani Nayak which is taken on record. 2. The petitioner faced trial in the Court of learned Assistant Sessions Judge, Angul in Sessions Trial No.81 of 1992 for offence punishable under section 307 of the Indian Penal Code for attempting to commit murder of his sister Ramarani Naik (P.W.12) on 23.01.1992 at about 8.30 a.m. at Badatalia forest of village Badamahitala. The learned Trial Court vide impugned judgment and order dated 13.05.1994 acquitted the petitioner of the charge under section 307 of the Indian Penal Code, however found him guilty under section 324 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years. The petitioner preferred an appeal in the Court of Session which was heard by learned Additional Sessions Judge, Angul in Criminal Appeal No.45 of 1994/187 of 1997. The learned Appellate Court vide impugned judgment and order dated 21.07.2000 has been pleased to uphold the impugned judgment and order of conviction and sentence passed by the learned Trial Court and accordingly dismissed the appeal, hence the revision. 3. A joint affidavit has been filed by the petitioner and the victim indicating therein that the petitioner and the victim are brother and sister and at present they are having harmonious relationship and they are residing peacefully and the victim has no further grievance against the petitioner and in view of settlement and mutual compromise, both the parties are interested for closure of the criminal case. Learned counsel for the State on instruction submitted that the petitioner has got no criminal antecedents. 4. By the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005), offence under section 324 of the Indian Penal Code was made non-compoundable. Though Act 25 of 2005 was published on 23.06.2006 but it was stipulated that the amended Act will take its effect only from the date of its notification. The amendment in section 320(2) of Cr.P.C. came into force from the date of its notification i.e. 31.12.2009. Therefore, the offence under section 324 of the Indian Penal Code became non-compoundable on 31.12.2009 and prior to 31.12.2009 the offence under section 324 of the Indian Penal Code was compoundable. The amendment in section 320(2) of Cr.P.C. came into force from the date of its notification i.e. 31.12.2009. Therefore, the offence under section 324 of the Indian Penal Code became non-compoundable on 31.12.2009 and prior to 31.12.2009 the offence under section 324 of the Indian Penal Code was compoundable. In case of Hirabhai Jhaverbhai -Vrs.-State of Gujarat & others reported in AIR 2010 Supreme Court 2321 where the appellant was found guilty under section 324 of the Indian Penal Code and parties filed application for compounding the offence, the Hon’ble Supreme Court held as follows:- “4. From the record it is evident that the incident in question took place on July 23, 1986. Pursuant to the order dated January 29, 2010 passed by this Court in the instant matter, the complainant and injured are impleaded as respondents and are represented through their learned counsels. They have filed affidavit stating that the disputes between the parties have been settled with the intervention of respectable persons of the society. They have also expressed their willingness to compound the offence. This Court finds that after coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 from June 23, 2006 the offence under section 324 IPC is made non-compoundable. However, in this case offence under section 324 IPC was committed on July 23, 1986 on which date it was compoundable with the permission of the Court. As the Code of Criminal Procedure (Amendment) Act 2005 is not applicable to the facts of the case, offence under section 324 IPC would be compoundable with the permission of the Court. In view of the statement, made by respondent Nos. 2 to 4 in their affidavit and having regard to the facts and circumstances of the case, permission to compound the offence deserves to be granted to the original complainant and the injured.” In case of Prabhat Das & others -Vrs. State of Tripura & others reported in 2013 Criminal Law Journal 1712, it was held that the offence under section 324 of I.P.C. was compoundable before the Code of Criminal Procedure (Amendment Act) 2005 (Act 25 of 2005) which came into force w.e.f. 31.12.2009. State of Tripura & others reported in 2013 Criminal Law Journal 1712, it was held that the offence under section 324 of I.P.C. was compoundable before the Code of Criminal Procedure (Amendment Act) 2005 (Act 25 of 2005) which came into force w.e.f. 31.12.2009. Evidently, on the date of occurrence i.e. on 21.02.2009, the offence under section 324 of the Indian Penal Code was compoundable with the permission of the Court in view of the provisions prescribed in the table under sub-section (2) of Section 320 of Cr.P.C. It was further held that the Amendment Act of 2005 intended to give effect w.e.f. the date of notification. So, before the date of notification though the amendment was made and published, it had no force and therefore, the provision which was existing before the date of coming into force of the Amendment Act shall operate. The Court accordingly granted permission to compound the offence under section 324 of the Indian Penal Code. In case of Bineesh & another –Vrs.-State of Kerala and another reported in 2012 Criminal Law Journal 4128, it was held that offence under section 324 of the Indian Penal Code committed prior to the enforcement of Criminal Procedure (Amendment) Act, 2005 can be compoundable with permission of Court. It was further held that despite coming into force of Act 25 of 2005 with effect from 31.12.2009, an offence under section 324 of the Indian Penal Code be compounded with the permission of the Court if the date of commission of the said offence is prior to 31.12.2009. 5. Considering the facts and circumstances of the case that the occurrence in question took place on 23.01.1992 when the offence under section 324 of the Indian Penal Code was compoundable in nature with the permission of the Court under section 320(2) of Cr.P.C. and the fact that the petitioner and the injured are the brother and sister and they have settled their dispute and the informant has no grievance against the petitioner and they have filed a joint affidavit, I am inclined to grant permission to the parties to compound the offence. In view of sub-section (8) of section 320 of Cr.P.C., the composition of the offence under section 324 of the Indian Penal Code shall have the effect of an acquittal of the petitioner with whom the offence has been compounded. In view of sub-section (8) of section 320 of Cr.P.C., the composition of the offence under section 324 of the Indian Penal Code shall have the effect of an acquittal of the petitioner with whom the offence has been compounded. Accordingly, the Criminal revision petition is allowed and the impugned judgments and orders of conviction and sentence of the Trial Court as well as Appellate Court are hereby set aside and the petitioner is acquitted of the charge under section 324 of the Indian Penal Code. The petitioner is on bail by virtue of the order of this Court. He is discharged from the liability of his bail bond. The personal bond and surety bond stand cancelled.