[2010] 13 (ADDL.) S.C.R. 1034

GIAN SINGH

STATE OF PUNJAB & ANR (Petition(s) for Special Leave to Appeal (Crl) No.8989 of

2010)

NOVEMBER 23, 2010

[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

Code of Criminal Procedure, 1973:

s.320- Compounding of offences- Prayer for permitting compounding of offences punishable u/ss 420 and 120-B /PC

- HELD: Offence punishable uls 420 is compoundable with permission of court, but offence punishable u/s 120-B is a

0 separate offence and since it is non-compoundable, Court cannot permit it to be compounded - Court cannot amend the statutes and it must maintain judicial restraint in this regard

- It is the Legislature alone which can amend s. 320 - The decision of the Court in the cases of B. S. Joshi, Nikhil E Mechant and Manoj Sharma require reconsideration by a larger Bench - The matter be placed before the chief Justice of India for constituting a larger Bench.

B. S.Joshi vs. State of Haryana 2003 ( 2 ) SCR 1104 =

(2003) 4 SCC 675; Nikhil Merchant vs. Central Bureau of F Investigation and Another 2008 (12 ) SCR 236 = (2008) 9

SCC 677; and Manoj Sharma vs. State and Others 2008

(14) SCR 539 = (2008) 16 SCC 1 - referred to.

Case Law Reference:

2003 (2) SCR 1104 referred to para 3

2008 (12) SCR 236 referred to para 3

2008 (14) SCR 539 referred to para 3

H 1034

GIAN SINGH v. STATE OF PUNJAB & ANR. 1035

CRIMINAL ORIGINAL JURISDICTION : SLP (Criminal) No.

A 8989 of 2010.

From the Order and Judgment dated 17.09.2010 of the High Court of Punjab and Haryana at Chandigarh in CRM No.

M-27367 of 2010.

Rajiv Kataria (for Delhi Law Chambers) for the Petitioner.

The following order of the Court was delivered

ORDER

Heard learned counsel for the petitioner.

The petitioner has been convicted under Section 420 and Section 1208, IPC by the learned Magistrate. He filed an appeal challenging his conviction before the learned Sessions D Judge. While his appeal was pending, he filed an application before the learned Sessions Judge for compounding the offence, which, according to the learned counsel, was directed to be taken up alo ng with the main appeal. Thereafter, the petitioner filed a petitioner under Section 482, Cr.P.C. for E quashing of the FiR on the ground of compounding the offence.

That petition under Section 482 Cr.P.C. has been dismissed by the High Court by its impugned order. Hence, this petition has been filed in this Court.

F Learned counsel for the petitioner has relied on three decisions of this Court, all by two Judge Benches. They are B.S. Joshi vs. Stae of Haryana (2003) 4 SCC 675; Nikhil Merchant vs. Central Bureau of lnwstigation and Another

(2008) 9 sec 677; and Manoj Sharma vs. State and others

(2008) 16 SCC 1. In these decisions, this Court has indirectly G permitted compounding of non-compoundable offences. One of us, Hon'ble Mr. Justice Markandey Katju, was a member to the fast two decisions.

Section 320, Cr.P.C. mentions certain offences as H

1036 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A compoundable, certain other offences as compoundable with the permission of the Court, and the other offences as noncompoundable vide Section 320 (7).

Section 420, IPC, one of the counts on which the petitioner B has been convicted, no doubt, is a compoundable offence with permission of the Court in view of Section 320, Cr.P.C. but Section 120B IPC, the other count on which the petitioner has been convicted, is a non-compoundable offence. Section 120B (criminal conspiracy) is a separate nffence and since it is a noncompoundable offence, we cannot permit it to be compounded. c

The Court cannot amend the statute and must maintain judicial restraint in this connection. The Courts should not try to take over the function of the Parliament or executive. It is the

legislature alone which can amend Section 320 Cr. P.C.

We are of the opinion that the above three decisions require to be re-considered as, in our opinion, something which cannot be done directly cannot be done directly cannot be done indirectly. In our, prima facie, opinion, non compoundable E offences cannot be permitted to be compounded by the Court, whether directly or indirectly. Hence, the above three decisions do not appear to us to be correctly decided.

It is true that in the last two decisions, one of us, Hon'ble Mr. Justice Markandey Katju, was a member but a Judge F should always be open to correct his mistakes. We feel that these decisions require re-consideration and hence we direct that this matter be placed before a larger Bench to reconsider the correctness of the aforesaid three decisions.

G Let the papers of this case be placed before Hon'ble Chief Justice of India for constituting a larger Bench.

R.P.

Matter referred to larger Bench.