1 S.B.CRIMINAL MISC. PETITION No.347/2000 Gokul Chand & Ors. vs. State of Rajasthan 26.11.2008 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr.Lokesh Sharma, for petitioners. Mr. B.K. Sharma, PP for State. *** 1. This criminal misc. petition has been filed by the complainant-petitioner challenging the order dated 12th May, 2000 passed by Special Court (Sati Niwaran) Rajasthan and Additional Sessions Judge, Jaipur, in criminal appeal No.153/98, whereby the learned court had partly application filed by the complainant-petitioner by compounding the offence under Section 420 IPC and not in respect of the other offences. 2. The learned counsel for the complainant-petitioner submits that he had made efforts to contact the client, but he has not responded nor he has any instructions from him. This misc. petition was filed in the year 2000 and, thereafter it was decided by the High Court on 24th August, 2004, whereby the same was allowed. Thereafter, the State of Rajasthan filed an appeal before the Hon'ble Supreme Court (115/2008), arising out of the SLP (Criminal) No.3582 of 2005. The appeal was heard and decided by the Hon'ble Apex Court on 15th January, 2008 with the following order :- “It is not in dispute that the offences involved in this case are non-compoundable except the offences under Sec.420. No reasons have been given in the impugned judgment for making them 2 compoundable. Therefore, we set aside the impugned judgment and remit the matter to the High Court for fresh disposal in accordance with law.” 3. In view of the aforesaid directions issued by the Hon'ble Supreme Court, for disposal of the matter in accordance to law, I deem it proper to decide this petition on merits. 4. Brief facts giving rise to this petition are that the petitioner- complainant filed a complaint on 6th February, 1982 against Rajendra Kumar and Suresh Kumar @ Chhaju Lal for the offences under Sections 420, 467, 468, 471 and 120B IPC. The said complaint was then sent for investigation under Section 156 (3) Cr.P.C. to the Police Station Vishwakarma Industrial Area, Jaipur. After investigation, the police submitted charge sheet against Rajendra Kumar and Suresh Kumar @ Chhaju Lal for the offences under Sections 420, 467, 48, 471 and 120B IPC. The learned Trial Court framed charges and proceeded with the trial. On conclusion of the trial, the accused Rajendra Kumar was convicted for offences under Sections 420, 467 and 468 I.P.C. and Suresh Kumar @ Chhaju Lal for the offence under Section 420 read with 109 IPC. 5. Being aggrieved of the judgment passed by the learned Trial Court, whereby the accused persons were convicted and sentenced on 12th July, 1996, they preferred an appeal before the learned Sessions Judge, Jaipur City, Jaipur. The said appeal was transferred to the court of Special Judge (Sati Niwaran), Jaipur City, Jaipur. It was during the pendency of the said 3 appeal, that an application came to be filed by the parties on 5th May, 2000 with the prayer that they have entered into a compromise and therefore the proceedings be dropped. The learned Appellate Court, after verifying the compromise and on appearance of both the parties, passed an order on 12th May, 2000 wherein he had verified and accepted the compromise in respect of the offence under Section 420 IPC and also ordered that the compromise be placed on record. Thereafter, the appeal was posted for arguments. 6. The case of the complainant-petitioner is that the learned court below in the instant case, have failed to appreciate that parties have entered into a compromise in this case. According to the complainant-petitioner, looking to the facts and circumstances of the case and the fact that the dispute between the parties have been amicably settled, the learned appellate court should have considered the case as a special one and in the peculiar circumstances the matter should have been dropped. On the other hand, the learned public prosecutor has submitted that the learned appellate court had not committed any illegality in passing the impugned order, whereby he had verified and accepted the compromise between the parties to the extent of the offence under Section 420 IPC because the other offences are not compoundable. Hence, it was not within the jurisdiction of the appellate court to have accepted the compromise in respect of all the offences and dropped the 4 proceedings by compounding the same. The powers of the court with regard to compounding of cases are specifically and clearly given out under Section 320 Cr.P.C. 7. I have given my thoughtful consideration to the facts and circumstances of the case and also the rival submissions made by the parties. 8. Before considering the relevant case law, on the question involved in this case, it is necessary to refer to the relevant provisions of the Code of Criminal Procedure. Section 320 of the Code of Criminal Procedure, deals with the compounding of the offences. “Section 320-Compounding of offences- (1)- The offence punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that 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:-..... (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. (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. 5 (9).No offence shall be compounded except as provided by this Section.” A perusal of the aforesaid provisions, shows that the offences specified in the 'Table' under Sub-section (1) are compoundable without the permission of the Court. But the offences mentioned in the 'Table' under Sub-section (2) can be compounded only with the permission of the Court. The offences which are not specified in the 'Table' cannot be compounded. 9. The Case of Ramlal And Another Vs. State of J.& K. (1999)2 SCC 213 wherein the Case of Mahesh Chand And Another vs. State of Rajasthan, 1990 (Supp.) SCC 681 had been referred to the Apex Court had ;observed, in para 2, as under:- “We cannot accede to the request for compounding in regard to the offence under Section 326 IPC as the same is a non- compoundable offence.” 10. When the Learned counsel for the petitioner, in the case of Ramlal (Supra), had invited the attention to the decision rendered in the Case of Y. Suresh Babu Vs. State of Andhra Pradesh,(1987)2,JT(SC) 361, it was observed by the Apex Court that in that very case it has been specifically observed that it “ shall not be treated as a precedent”. 6 11. The Apex Court had very categorically obversed, in para 3, of the Case of Ramlal (Supra), that “We are unable to follow the said decision as a binding precedent. Section 320 which deals with “Compounding of offences” provides two tables therein, one containing descriptions of offences which can be compounded by the person mentioned in it, and the order containing descriptions of offences which can be compounded with the permission of the Court by the persons indicated therein. Only such offences as are included in the said two tables can be compounded and none-else. Sub-section (9) of Section 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms.”. “320(9) No offence shall be compounded except as provided by this Section.” 12. Further more, the Apex Court in para 4 observed as under:- “It is apparent that when the decision in Mahesh Chand And Another Vs. State of Rajasthan(Supra) was rendered the attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was the attention of the learned Judges was rendered the decision in Y. Suresh Baboo drawn. Hence, those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. The offence under Section 326 IPC is, admittedly, non-compoundable and hence, we cannot accede to the request of the learned counsel to permit the same to be compounded.” 7 13. Therefore, in the Case of Ramlal (Supra), itself, relied upon by the learned counsel for the petitioners, it has been made clear by the Apex Court that the decisions of Y. Suresh Baboo and Mahesh Chandra (Supra), are not binding. Only such offences which are included in the said two tables under Section 320 Cr.P.C. can be compounded and none-else. 14. The Hon'ble Supreme Court in the Case of Surendra Nath Mohanty And Another Vs. State of Orissa (1999) 5 SCC 238, decided by a Larger Bench, while dealing with the same question as in the instant case, held as under:- “In our view, the submission of the learned counsel for the respondent requires to be accepted. For compounding of the offences punishable under the Indian Penal Code, a complete scheme is provided under section 320 of the Code of Criminal Procedure, 1973. Sub-section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons, mentioned in column 3 of the said table. Further Sub- section (2) provides that the offences mentioned in the table could be compounded by the victim with the permission of the court. As against this, Sub-section (9), specifically, provides that “no offence shall be compounded except as provided by this Section”. In view of the aforesaid legislative mandate, only the offences which are covered by Table 1 or Table 2 as stated above, can be compounded and the rest of the offences punishable under the Indian Penal Code, could not be compounded.” 15. Further more, the Hon'ble Apex Court in the Case of 8 Surendra Nath Mohanty (Supra), observed that the decision in the Case of Y. Suresh Babu (Supra),is per incuriam. It held as under:- “In the Case of Y. Suresh Babu, the Court has specifically observed that the said case “shall not be treated as a precedent”. The aforesaid two decisions are based on facts and in any set of circumstances, they can be treated as per incuriam as pointed attention of the Court to Sub-section (9) of Section 320 was not drawn. Hence, the High Court rightly refused to grant permission to compound the offence punishable under Section 326.” 16. Later-on the Hon'ble Supreme Court in the Case of Bankat And Another Vs. State of Maharashtra (2005) 1 SCC 343, reiterated the aforementioned principles and held that in view of Sub-section (9) of Section 320 Cr.P.C., which is a legislative mandate, only the offences which are covered by tables 1 and 2 provided under Section 320, can be compounded and the rest of the offences punishable under the Indian Penal Code cannot be compounded. 17. Therefore, the Apex Court had followed the above referred Judgments, of Ramlal (Supra), and Surendra Nath Mohanty (Supra), and held that the Case of Mahesh Chand (Supra) and Y. Suresh Babu (Supra), are per incuriam. The Hon'ble Supreme Court had held in para 14 of the Case of Bankat (Supra), as under:- “We reiterate that the course adopted 9 in Y. Suresh Babu and Mahesh Chand case was not in accordance with law.” 18. The Apex Court had again, in the Case of Badrilal Vs. State of M.P. (2005)7 SCC 55,wherein a joint petition of compromise was filed in an offence under Section 307 IPC, held that a compromise cannot be recorded in such a case. In para 4 of the said Judgment, it was held as under:- “A joint petition of the compromise has been filed on behalf of the parties, in which prayer has been made for recording the compromise. The offence under Section 307 IPC is not a compoundable one, therefore, compromise cannot be recorded but at the same time it is well settled that while awarding sentence the effect of compromise can be taken into consideration. It has been stated that the appellant has remained in custody for a period of about 14 months and there is no allegation that he assaulted the deceased . In the facts and circumstances of the case, we are of the view, that end of justice should be met in case, the sentence of imprisonment awarded against the appellant by the trial Court and reduced by the High Court in further reduced to the period already undergone.” 19. In a case relating to the offence under Section 326 IPC, it was categorically held in the Case of Jetha Ram And Others Vs. State of Rajasthan (2006)9 SCC 255, by the Apex Court, that the said offence is not compoundable, as such, it is not possible to record the compromise. 20. In regard to the question as to whether High Court can 10 direct the trial Court to grant permission to compound a offence which is a non-compoundable offence under the Code, a Full Bench decision of this Court, in the Case of Mohan Singh And Others Vs. State 1993 (3) WLC (Raj) 569 had directly answered in the negative. The Full Bench was considering the offence under section 326 IPC and held that in view of provisions contained in Sub-section (9) of Section 320 of the Cr.P.C, the High Court cannot permit to compound the offence which is not compoundable under Sub-section (1) or Sub-section (2) of Section 320 Cr.P.C. 21. To add the last, in the series of judgments passed by the Hon'ble Apex Court that the offences enumerated under Section 320 Cr.P.C. can only be compounded by a court of law, is the case of Mohd.Abdul Sufan Laskar and Others vs. State of Assam decided on 25th August, 2008 [(2008) 9 SCC 333] wherein it had reiterated the principle laid down in the earlier judgments. 22. For the aforesaid reasons, I am of the considered opinion that the learned court, who is holding the trial or considering an appeal can only compound the offence which has been specifically given in the tables mentioned under Section 320 Cr.P.C. It is note worthy that sub-section (9) of Section 320 Cr.P.C. provides that no offence shall be compounded except as provided by that Section. Therefore, this court in exercise of its inherent powers under Section 482 Cr.P.C. cannot pass an order which has been 11 specifically prohibited under the Code of Criminal Procedure. 23. Consequently, this criminal misc. petition is devoid of any merit and the same is dismissed. 24. Record of the trial court be sent forthwith. (Raghuvendra S. Rathore)J. Sanjay Item No.s/2