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2016 DIGILAW 296 (KER)

SHARAFUDEEN v. STATE OF KERALA

2016-03-16

B.KEMAL PASHA

body2016
ORDER : The petitioner is the accused in C.C.No.820 of 2015 of the Judicial First Class Magistrate's Court, Karunagappally, for the offence under Section 379 IPC. 2. The offence was allegedly committed on 02.03.2008. Subsequently, as per Criminal Procedure (Amendment) Act, 2008, which has come into force on 31.12.2009, the offence of theft under Section 379 IPC is made compoundable irrespective of the value of the subject matter, and the owner of the property stolen has been given the power to compound the offence. Based on the amendment, the petitioner along with the defacto complainant filed an application seeking permission to compound the offence as C.M.P.No.6464 of 2015 before the court below. 3. Through Annexure-III order, the court below has dismissed the C.M.P. by stating that the amendment was through Criminal Procedure (Amendment) Act, 2010 and the same was with effect from 31.12.2009. The said finding is totally erroneous. 4. The amendment in question was through the Code of Criminal Procedure (Amendment) Act, 2008 and the same came into force on 31.12.2009. Nowhere in the Amendment Act, it is specified that the said amendment has only prospective operation. Being an amendment to the procedural law, normally it relates back and it has retrospective operation, unless it is clearly specified that it has prospective operation only. 5. In Gurbachan Singh v. Satpal Singh and Others [ AIR 1990 SC 209 ], it was held in paragraphs 36 and 37 as follows: "36. It is profitable to refer in this connection to Halsbury's Laws of England, (Fourth Edition), Volume 44 page 570 wherein it has been stated that: "The general rule is that all statutes, other than those which are merely declaratory or which relates only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature........" 37. It has also been stated in the said volume of Halsbury's Law of England at page 574 that: "The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament." When it has not been specified in the Amendment Act that the said amendment has only prospective operation, it has got retrospective operation. Matters being so, the court below ought to have permitted the parties to compound the offence. 6. The petitioner has come up in revision by challenging Annexure-III order passed by the court below. The defacto complainant has filed an affidavit before this Court, affirming that the matter has been settled out of court and that he is not interested in prosecuting the case any more against the petitioner. 7. It was also affirmed that the petitioner was suffering from mental illness and he had to undergo treatment at a Mental Health Centre. Presently, his mental illness has been cured. That fact also has been taken into consideration by the 2nd respondent herein to compound the offence. Over and above it, the 2nd respondent has been adequately compensated. 8. When the matter is in revision before this Court, this Court can exercise the powers under Section 320(6) Cr.P.C., to permit any person to compound any offence, when such person is competent to compound under Section 320 Cr.P.C. When the matter has been compounded, by the 2nd respondent, who is the defacto complainant in the case before the court below, the said composition is only to be accepted. The 2nd respondent is permitted to compound the offence. The affidavit filed by the 2nd respondent is recorded. The offence is treated as compounded. The composition of the offence has the effect of acquittal within the meaning of Section 320(8) Cr.P.C. In the result, this Crl.R.P. is allowed and the impugned order passed by the court below is set aside. The composition of the offence is recorded and the petitioner is acquitted within the meaning of 320(8) Cr.P.C.