Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 578 (KER)

Valsan v. Mananthody Police Station

2016-07-04

P.D.RAJAN

body2016
ORDER 1. The short question that arises in this case is whether a non-compoundable case can be compounded under Section 320 of the Code of Criminal Procedure (for short 'Cr.P.C') ? Revision petitioners, who are the accused, have preferred this revision petition against the concurrent judgment in Crl.A.33 of 2003 of Sessions Judge, Wayanad. They were charge sheeted in CC.193 of 2001 before Judicial First Class Magistrate II, Mananthavady under Section 323, 326 read with 34 IPC. After trial the learned Magistrate convicted the accused under Section 323 and 326 read with 34 IPC and sentenced to undergo simple imprisonment for six months under Section 323 r/w 34 IPC, sentenced to undergo simple imprisonment for 18 months with fine of Rs.2000/- under Section 326 r/w 34 IPC, in default, simple imprisonment for six months. Against that accused preferred a criminal appeal before Sessions Judge, Wayanad where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, they preferred this revision petition. 2. The charge against the accused is that on 11.11.1996 at 6.30 am, while PW1 was proceeding to the Milk Society, the accused hide near a tree, jumped in front of him, A2 beat with a handle spade, others beat with hands and kicked him, as a result he sustained serious injuries. For this, Mananthavady police registered a crime and after completing investigation, they filed a final report before the trial court. To prove the offence, prosecution examined PW1 to PW4 and marked Ext.P1 to P6. The handle spade was admitted as MO1 by the trial court. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. The accused did not adduce any defence evidence and the trial Magistrate convicted them. 3. When the revision petition came up for hearing, learned counsel appearing for the revision petitioners submitted that the injured is their uncle and they have settled the matter out of court and filed Crl.M.A.4022 of 2016 before this court. I have perused the compromise petition in which both parties have signed. Learned Public Prosecutor identified the injured PW1. Both parties submitted that PW1 is their uncle and they paid Rs.50,000/- to him as compensation under the settlement. According to Section 320(1) Cr.P.C, offences punishable under IPC specified in the first two columns of the table next following may be compounded by the person mentioned in the third column of that table. Learned Public Prosecutor identified the injured PW1. Both parties submitted that PW1 is their uncle and they paid Rs.50,000/- to him as compensation under the settlement. According to Section 320(1) Cr.P.C, offences punishable under IPC specified in the first two columns of the table next following may be compounded by the person mentioned in the third column of that table. According to Section 320(2) Cr.P.C, offences punishable under IPC specified in the first two columns of the table next following may be with permission of the court, before which any prosecution for such offence is pending, be compounded by the person mentioned in the third column of that table. 4. When offences are compoundable and the case is committed for trial or the accused is convicted and appeal is pending, the compounding can be allowed with leave of the court. According to Section 320(6) Cr.P.C, High Court or Court of Session in exercise of its power of revision under Section 401 may allow any person to compound any offence with such person who is competent to compound under this section. The principle provided under Section 320(6) clarifies that where parties approach the revisional court to compound a case, the presence of the injured is necessary. Considering the circumstances of the case, permission is granted, provided where the aggrieved party is actually before court and has given his consent. This view has been expressed by Patna High Court in Gurunarayan das v. King Emperor (AIR 1948 Patna 58 and Calcutta High Court in Baburali Sardar and others v. Kala Chand Bepari & others (AIR 1939 Cal 728. When composition of an offence is made, it shall have the effect of an acquittal under Section 320(8) Cr.P.C. 5. The general scheme for compounding an offence has been explained under Section 320 of the Code. But section 320(9) Cr.P.C says that no offences shall be compounded except as provided in the section. The offence under section 326 IPC is non compoundable. Any compromise between the accused person and the victim of the crime should not exonerate the criminal liability of the accused. However, when an offence is essentially of a private nature and not a serious one, the code consider it as a compoundable offence and some offences are compoundable with the permission of the court. Most of the compoundable offences are non cognizable, but all non-cognizable offences are not compoundable. However, when an offence is essentially of a private nature and not a serious one, the code consider it as a compoundable offence and some offences are compoundable with the permission of the court. Most of the compoundable offences are non cognizable, but all non-cognizable offences are not compoundable. On the other hand, the offences which are compoundable with the permission of the court are cognizable offence, at the same time all cognizable offences are not compoundable. Therefore Section 320(9) Cr.P.C makes it clear that offences not provided by this section are not compoundable. Therefore, broadly speaking, offences other than those specified in Section 320(1) and (2) Cr.P.C cannot be compounded. According to the scheme of the section, all offences under special or local laws are non compoundable and the legislature has to make a clear indication in those laws as to what extent offences under such laws should be compounded. 6. Apex Court in B.S.Joshy v. State of Haryana ( 2003(4) SCC 675 held as follows:- " The High Court also relied upon the decision in case of Surendra Nath Mohanty case for the proposition that offence declared to be non- compoundable cannot be compounded at all even with the permission of the court. That is of course so. The offences which can be compounded are mentioned in Section 320. Those offences which are not mentioned therein cannot be permitted to be compounded. In Mohanty case the appellants were convicted by the trial court for offence under Section 307. The High Court altered the conviction of the appellants and convicted them for offence under Section 326 and imposed sentence of six months. The trial court had sentenced the appellants for a period of five years' RI. The application for compounding was, however, dismissed by the High Court. This Court holding that the offence for which the appellants had been convicted was non-compoundable and, therefore, it could not be permitted to be compounded but considering that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone. It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstances abovestated". It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstances abovestated". (paragraph 9) Therefore a reading of the above decision makes it clear that after conviction of the accused in a non compoundable offence, it cannot be permitted to be compounded but considering the fact that the parties had settled their dispute outside the court, the sentence can be reduced to the period already undergone. 7. In Bankat v. State of Maharashtra ( 2005(1) SCC 343 , apex court held that non compoundable offences could not be compounded. In Maheshchand v. State of Rajasthan (1991 SCC (crl) 159), apex court granted permission to compound the offence under Section 307 IPC, But in Ramlal v. State of Jammu and Kashmir (1999 SCC (crl) 123) apex court overruled the decision. Here the injured is the uncle of the revision petitioners. For the purpose of seeking the ends of justice, the sentence has to be reduced to the period already undergone. Apex Court in Ram Bujan v. State of UP (1973 SCC(crl) 870 held that if parties belonging to one family settled their dispute, it is not necessary to keep them in jail for a long time. In Malkiat Singh v. State of Punjab (1983 SCC (crl) 52 ), apex court reiterated the view that to meet the ends of justice the sentence has to be reduced to the period already undergone. Hence the conviction and sentence passed by the learned Judicial First Class Magistrate, Mananthavady under Section 323, 34 IPC are compounded under Section 320(8) Cr.P.C and the accused are acquitted and set at liberty. The offence under Section 326 IPC is non compoundable. In the light of the family relationship and in view of the compromise, the sentence imposed by the trial court needs modification. A1 and A2 were arrested on 12.08.2002, A3 was arrested on 11.8.2002 and A4 was arrested on 13.08.2002, however they were released on 17.8.2002. A5 was not arrested. Hence the sentence of A1 to A4 is reduced to the period already undergone and fifth revision petitioner is sentenced to imprisonment till rising of court and fine of Rs.3000/-. The revision petition is disposed of as above. A5 was not arrested. Hence the sentence of A1 to A4 is reduced to the period already undergone and fifth revision petitioner is sentenced to imprisonment till rising of court and fine of Rs.3000/-. The revision petition is disposed of as above. The last portion in 7th paragraph of the final order dated 04/07/2016 in Crl.R.P No.1412/2004 is corrected and substituted as follows: "A1 to A3 were arrested on 15/11/1996 and they were released on 16/11/1996. Hence the sentence of A1 to A3 is reduced to the period already undergone and fine of Rs.3000/-. They are directed to pay the fine amount within 30 days failing which the learned Magistrate shall realise the amount under Section 421 Cr.P.C" as per order dated 13/10/2016 in Crl.M.A.No.6117/2016 in Crl.R.P.1412/2004.