IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 14TH FEBRUARY 2007 / 25TH MAGHA 1928 WP(C).No. 34540 of 2006(J) -------------------------- CC.413/1997 of J.M.F.C.-I MUVATUPUZHA .................... PETITIONER: ------------ SABU GEORGE, S/O.GEORGE, AGED 42 YEARS, GRACE VILLA, THOTTAKKARA KARA, MEMADANGU P.O., ARAKKUZHA VILLAGE, MUVATTUPUZHA. BY ADV. SRI.SABU THOZHUPPADAN RESPONDENTS: ------------- 1. THE HOME SECRETARY, DEPARTMENT OF HOME AFFAIRS, UNION OF INDIA, NEW DELHI. 2. P.K.RAVI, PUTHENPURAKKAL HOUSE, PERINGAZHA, MUVATTUPUZHA. R1 BY ADV. SRI.BOBY JOHN, CGC R2 BY ADV. SRI.BABU KARUKAPADATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/02/2007, ALONG WITH CRL.M.A.8626/06 IN CRRP NO. 7 OF 2004 CRMC NO. 259 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C. No. 34540 of 2006, Crl.M.A.No. 8626 of 2006 in Crl.R.P.No. 7 of 2004 & Crl.M.C. No. 259 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of February, 2007 JUDGMENT Can composition of an offence under Section 138 of the N.I. Act even after the conviction and sentence have become final after the judgments of the trial, appellate and revisional courts be accepted? (ii) If so, which court is to accept the same? Has the trial court, appellate court or the revisional court powers to accept such composition? (iii) If no such court can accept such composition, can this court invoke its Constitutional powers under Article 226 of the Constitution or the original extraordinary inherent power under Section 482 Cr.P.C. to accept the composition and relieve the accused of the obligation to undergo the sentence of imprisonment? 2. These questions of importance arise for consideration in these petitions. As the questions raised were reckoned by me as W.P.C. No. 34540 of 2006 & connected cases 2 important and vital, I had sought the assistance, which I get in good measure too, of Shri.S.Sreekumar, Standing Counsel for the C.B.I. and Shri.T.G. Rajendran, Advocate. All counsel have been heard in detail. 3. To the vital facts first. Crl.M.C. 259 of 2007 and Crl.M.A. 8626 of 2006 in Crl.R.P.No. 7 of 2004 are both filed by some accused in a prosecution under Section 138 of the N.I. Act. The verdict of guilty, conviction and sentence on him have become final and the said petitioner now faces a sentence of S.I. for a period of six months and to pay a fine of Rs.1,60,000/- and in default to undergo S.I. for a period of four months. If the fine is realised, an amount of Rs.1,58,000/- has been directed to be paid to the complainant as compensation under Section 357(1) Cr.P.C. Crl.M.A. 8626 of 2006 was filed initially by the petitioner with a prayer that the joint application for composition filed by the petitioner/accused and the respondent/complainant duly counter signed by their respective counsel may be accepted. It was later, by way of abundant caution, that Crl.M.C. 259 of 2007 was also filed by the petitioner/accused with a prayer that the sentence imposed on him may not be enforced in view of the subsequent composition, by invoking the powers under Section 482 Cr.P.C. W.P.C. No. 34540 of 2006 & connected cases 3 4. Writ Petition No.34540 of 2006 is filed by the petitioner therein, who is also an accused in a prosecution under Section 138 of the N.I. Act. He has also been found guilty, convicted and sentenced in a prosecution under Section 138 of the N.I. Act. He faces the sentence of S.I. for a period of one month and to pay a fine of Rs.5,000/- and in default of payment of fine, to suffer S.I. for another period of 15 days. Out of the fine amount, if realised, an amount of Rs.3,000/- has been directed to be paid as compensation to the complainant under Section 357(1) Cr.P.C. 5. The respondents/complainants are represented before me by their counsel. I am satisfied beyond the semblance of doubt, from the submissions made at the Bar as also from the joint statement reporting composition duly filed by the rival contestants and counter signed by their counsel, that the matter has been amicably settled between the parties. Thus the composition, I am satisfied, if legally permissible, can be accepted. 6. The law relating to composition of offences is essentially available under Section 320 Cr.P.C. I extract the same below: “S. 320. Compounding of offences. - (1) The offences punishable under the sections of the indian Penal Code (45 of 1860) specified in the first two columns of the Table next W.P.C. No. 34540 of 2006 & connected cases 4 following may be compounded by the persons mentioned in the third column of that Table:- xx xxx xxx (Table) (2) The offences punishable under the sections of the Indian Penal Code (45 of 1860), specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table:- (Table) (3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner. (4)(a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the Court, compound such offence. (b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court, compound such offence. (5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the court to which he is committed, or, as the case may be, W.P.C. No. 34540 of 2006 & connected cases 5 before which the appeal is to be heard. (6) A High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section. (7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence. (8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. (9) No offence shall be compounded except as provided by this section.” The language of Section 320 Cr.P.C. indicates that the said section will apply only to offences punishable under the Indian Penal Code and not to any offence punishable under any special law. 7. Section 320 Cr.P.C. does not, hence apply specifically to Section 138 of the N.I. Act. All crimes are offences against the State and unless the law declares the offences to be compoundable, they cannot be permitted to be compounded. Such offences against the State cannot be compounded by the aggrieved private individual unless the law declares such offences to be compoundable. Realising this difficulty, Section 147 was brought into W.P.C. No. 34540 of 2006 & connected cases 6 the N.I. Act by the subsequent amendment in 2002 and the newly introduced Section 147, which I extract below, declares that the offence under Section 138 of the N.I. Act shall be compoundable. “S. 147. Offences to be compoundable. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.” (emphasis supplied) 8. The first contention that is raised is that Section 320 Cr.P.C. cannot apply at all to an offence under Section 138 of the N.I. Act because Section 147 opens with the words “Notwithstanding anything contained in the Code of Criminal Procedure, 1973”. But, according to me, it would be irrational and unreasonable to so understand the non-obstante clause in Section 147, because if such interpretation were accepted, there will be no other stipulated procedure under which the composition of the offence under Section 138 of the N.I. Act as permitted under Section 147 can be implemented. The non-obstante clause in Section 147 must hence be read reasonably as to mean that the offence under Section 138 will be compoundable under Section 320 Cr.P.C., notwithstanding the fact that Section 320 Cr.P.C. does not in terms apply to Section 138 of the N.I. Act W.P.C. No. 34540 of 2006 & connected cases 7 and applies only to offences under the Indian Penal Code specified under Section 320(1) and (2). 9. When composition can be legally accepted, it is necessary that there must be a procedure prescribed. The stipulation for deemed acquittal after composition must also be there, as otherwise it will be impossible to work out the consequences of a composition. In this context Sections 4 and 5 of the Cr.P.C. assume relevance. I extract them below: “S.4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 OF 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” W.P.C. No. 34540 of 2006 & connected cases 8 10. When no special procedure is prescribed under any special law, the procedure prescribed under the Cr.P.C. has to be followed for investigation, enquiry, trial or otherwise dealing with such situations. If there is a specific provision contra in any such special law the provisions of the Code shall not apply. About the procedure for composition and its consequences we have stipulations in the Code. There is no provision in the N.I. Act also. Therefore, Section 4 of the Cr.P.C. must apply and Section 5 cannot apply while considering the procedure to be followed for effecting a composition of the offence under Section 138 of the N.I. Act as permitted under Section 147 of the N.I. Act. Any different understanding of the non-obstante clause in Section 147 will leave the courts without any known or specified procedure to be followed while considering the acceptance of the composition. The non-obstante clause in Section 147 means only this i.e. “an offence under Section 138 of the N.I. Act may not be compoundable under Section 320 of the Code. That provision as it stands may apply only to specified offences under the I.P.C. But it is stipulated hereby that the offence under Section 138 shall also be reckoned as a compoundable offence under the Code i.e. under Section 320 Cr.P.C. I respectfully disagree with the different view taken by the Gujarat High W.P.C. No. 34540 of 2006 & connected cases 9 Court in Kirpalsingh Pratapsingh Ori v. Balvinder Kaur Hardipsingh Lobana (2004 Crl.L.J. 3786). 11. In as much as Section 147 only declares the offence to be compoundable, it will necessarily have to be assumed that the composition will fall under Section 320(1) Cr.P.C. and not under Section 320(2) Cr.P.C. Composition can be effected even without the permission of the court. That is the only way to understand Section 147 from the plain language employed by Section 147 of the Act. I, therefore, come to the conclusion that Section 147 of the N.I. Act and Section 320 Cr.P.C. read along with Sections 4 and 5 Cr.P.C. can lead only to the conclusion that the offence under Section 138 is compoundable without the permission of the Court and in the event of such composition, the procedure under Section 320 Cr.P.C. has got to be followed. 12. That takes me to the next question as to when the composition of an offence, to which Section 320(1) Cr.P.C. applies, can be effected. After the offence is committed, there must be a gap of time between such commission of the offence and cognizance of the offence by the Court. After cognizance, till the trial court pronounces the judgment, there is a gap of time. Thereafter, during the pendency of the appeal and revision also W.P.C. No. 34540 of 2006 & connected cases 10 there must be gaps of time. After the conviction and sentence become final the last stage arises and that may be prior to execution of the sentence or during execution of sentence. 13. The contention that an offence can be compounded under Section 320(1) Cr.P.C. only when the matter is pending before a court has been considered by me. But that does not appear to me to be the correct law. The decisions in Mrs. F.M. Torpey v. King Emperor (AIR 1927 Allahabad 375) and Kumaraswami Chetty v. Kuppuswami Chetty (1918) 41 Mad 685) clearly show that initiation of proceedings/prosecution is not a condition precedent for composition of the offence. In short, composition can be effected even prior to commencement of prosecution. In Mrs. Torpey (supra) the question is dealt with by the learned Judge in the following words, after referring to the decision in Kumaraswami Chetty (supra). “The lower appellate Court refused to accept the compromise on the ground that the complaint was filed subsequent to the alleged compromise and not prior thereto. An offence under S.341 may be compounded without the permission of the Court under S.345(1) of the Code of Criminal Procedure. It, therefore, does not seem to be necessary that a composition should be arrived at after a W.P.C. No. 34540 of 2006 & connected cases 11 complaint has been filed in Court. The words of the section are: The offence punishable under the sections of the Indian Penal Code specified in the first column of the table next following may be compounded by the persons mentioned in the third column of that table. An offence of wrongful restraint is compoundable by the person restrained. This appears to be the view suggested by the working of the section and is supported by a Bench ruling of the Madras High Court in the case of Kumaraswami Chetty v. Kuppuswami Chetty. The learned Judges there observed: An offence is complete when the acts constituting it have been committed apart from whether any complaint or charge has been laid before the Court or not. The allusion to the “accused” in paragraph 6 of S.345 only describes his character at the time of the trial when the question of the effect of the composition is under consideration. I hold that there can be a composition of the present offence prior to a complaint.” I do completely concur with that view. That view does appear to me to be most reasonable. If a different view were taken, pending investigation into a compoundable (320(1) Cr.P.C.) offence which is cognizable and non- bailable, the accused will be forced to endure the trauma of arrest and all the paraphernalia of investigation, till a final report is filed in court, whereupon only he will be able to come to Court and seek composition. If the offence W.P.C. No. 34540 of 2006 & connected cases 12 is compoundable under Section 320(1) and the parties have compounded the offence, the police must be bound to accept the same and drop further action and make report of the same to the Magistrate concerned. If the police do not, it must be possible for the parties to approach the learned Magistrate or this Court under Section 482 Cr.P.C. I therefore agree that composition of an offence under Section 320(1) can be effected even before cognizance of the offence is taken by the Magistrate. 14. Composition pending trial, appeal and revision is perfectly possible and the language of Section 320(5) and (6) Cr.P.C. make the position crystal clear. The obvious purpose and the rationale underlying Section 320(5) and (6), it appears to me, is only that during the pendency of the proceedings composition of even an offence under Section 320(1) should not be arrived at without the knowledge of the Court before which such proceedings are pending. Section 320(5) and (6) are applicable to an offence falling within the sweep of Section 320(1) also and the purpose can only be to apprise the court of such composition. There is nothing in Section 320, which makes a post-revision composition impermissible if the offence would fall within Section 320(1) Cr.P.C. Section 320(5) and (6) speak of the event of conviction and pendency of an appeal or revision W.P.C. No. 34540 of 2006 & connected cases 13 and they do not deal with the liberty or option of the parties to compound the offence after trial/appeal/revision. By the same reasons given in Mrs. Torpey, it must hence be possible for the parties to enter into a composition even after the verdict of guilty, conviction and sentence have become final and no proceedings are pending before any Court. Going by the plain language of Section 320(1), no time limit appears to have been fixed before which the composition must necessarily take place, though for composition during the pendency of appellate or revisional proceedings leave of the Court must be sought under Section 320(5) and 320(6). 15. But then, such a conclusion also creates further problems. If the verdict of guilty, conviction and sentence have become final, which Court would accept the same so as to avoid execution of the sentence, which has become final. If the trial/appeal/revision is already over, such original, trial and revisional court would become functus officio and they will not have jurisdiction to alter their verdicts and to convert the verdict of guilty and conviction to a deemed acquittal under Section 320(8). The language of Section 362 Cr.P.C. which I extract below, makes the position clear. S.362. Court not to alter judgment. - Save as otherwise provided by this Code or by any other law for the W.P.C. No. 34540 of 2006 & connected cases 14 time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” Therefore the judgment, which has already been rendered, cannot be altered by the trial court, appellate court or the revisional court. The decision in State of Kerala v. M.M. Manikantan Nair (AIR 2001 SC 2145) is clear authority for the proposition that a Court, which has become functus officio, cannot thereafter pass any orders in such a case. I extract para 7 of the said judgment for this proposition: “ This Court in Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169: (2000 AIR SCW 3848: AIR 2001 SC 43: 2001 Cri.LJ 128), held that Section 362 of the Criminal Procedure Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error and that this section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the Court of competent jurisdiction.” (emphasis supplied) Therefore, it is evident that a trial, appellate or revisional Court, which has become functus officio cannot accept a subsequent composition and alter its own earlier judgment and convert the same to a deemed acquittal under W.P.C. No. 34540 of 2006 & connected cases 15 Section 320(8) Cr.P.C. It is unnecessary to refer to other precedents. Binding precedents of the Supreme Court make it clear that a Court - Original, appellate or revisional, which has finally disposed of the matter cannot thereafter exercise any such powers which it could have invoked and exercised prior to such final disposal. 16. If the trial, appellate and revisional court cannot do the same and the composition is legally permissible, the question necessarily will have to be considered as to which court can and in what manner the accused, the offence against whom has been compounded in accordance with law, can be saved from the trauma of suffering the sentence. 17. It is here that the next question arises as to whether powers under Section 482 Cr.P.C. can be invoked by this Court to give effect to such a composition which has been legally arrived at, but for the acceptance of which, there is no specific stipulation of law. Section 482 Cr.P.C. reads as follows:- “S. 482. Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” W.P.C. No. 34540 of 2006 & connected cases 16 18. Precedents galore to indicate the sweep, width and amplitude of the inherent powers of this Court under Section 482 Cr.P.C. Section 482 does not really confer any power on the High Court exercising criminal jurisdiction. It only saves the inherent powers of the High Court, which was always there. Ex debito justitiae such powers can be invoked and such powers were always available with the court. The width and amplitude of such powers must necessarily instill in the mind of the Court the need to be circumspect. But such powers are not fettered by any stipulations of the Code. If there be any doubt on this proposition, it will be apposite to refer to the decision in Raj Kapoor v. State (1980) 1 SCC 43). Justice Krishna Iyer in paragraph 10 of that decision refers to the powers under Section 482 Cr.P.C. in the following words: “10. The first question is as to whether the inherent power of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code.” (emphasis supplied) W.P.C. No. 34540 of 2006 & connected cases 17 19. Later, the Supreme Court had occasion to specifically consider whether the stipulations under Section 320 Cr.P.C. would fetter the powers of the High Court under Section 482 Cr.P.C. The decision in B.S. Joshi v. State of Haryana (AIR 2003 SC 1386) makes the position clear and the Supreme Court speaks thus through Justice Y.K. Sabharwal in paragraphs 8 and 15: “8. It is, thus, clear that Madhu Limaye's case does