IMPORTANT POINT
Composition of offence shall have effect of acquittal of offence.

Judgment :

1. Delay condoned. The application for impleadment is allowed.

2. Leave granted.

3. This appeal by special leave is directed against the judgment and order dated 13/07/2012 passed in Criminal Appeal No. 1/2011 and the judgment and order dated 10/12/2012 passed in CRA Nos. 11, 12 & 17/2012 by the High Court of Calcutta. By the impugned order dated 13/07/2012 passed in Criminal Appeal No.1/2011 the High Court converted the conviction of the appellant from Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the SC & ST Act”) to Section 354 of the IPC. The High Court, accordingly, partly allowed the appeal by modifying the sentence imposed by the trial court from rigorous imprisonment for one year and fine of Rs. 3,000/- to six months rigorous imprisonment and fine of Rs. 3,000/-, in default, to suffer rigorous imprisonment for three months. Thereafter the parties arrived at a compromise. Application was made to the High Court for grant of permission to compound the offence. The High Court vide impugned order dated 10/12/2012 passed in CRA Nos. 11, 12 & 17/2012 held that once the judgment has been delivered by the Court, the Court becomes functus officio and in the absence of any pending lis, it cannot entertain the application seeking to compound the offence. The High Court observed that remedy of the parties was to move this Court.

4. According to the prosecution, the complainant Dr. Harold Charles (PW-3) lodged a complaint against the appellant at the Car Nicobar, Police Station which was registered as FIR No.10 of 2004 under Section 354 of the IPC read with Section 3(1)(ix) of the SC & ST Act alleging that on 15/3/2004 around 1.30 p.m. the appellant molested his daughter PW6-the victim in his shop when she had gone there to buy some eatables. When the victim came home and narrated the incident to him, he rushed to the appellant and asked for an explanation. The appellant initially denied the incident but later admitted it and begged pardon.

5. On the basis of the said FIR, investigation commenced. On completion of investigation, charge-sheet was filed against the appellant. A charge under Section 3(1) (xi) of the SC & ST Act was framed against him. No charge was framed under Section 354 of the IPC. The prosecution, in support of its case, examined eight witnesses. The appellant pleaded not guilty to the charge and claimed to be tried.

6. After considering the evidence on record, the trial court convicted the appellant for offence punishable under Section 3(1) (xi) of the SC & ST Act and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 3,000/-, in default, to suffer further three months imprisonment.

7. The appellant carried an appeal to the High Court. The High Court was of the view that there was nothing on record to establish that the victim had been singled-out for indecent sexual assault because she is a member of a Scheduled Tribe. Hence, essential ingredients of offence punishable under Section 3(1) (xi) of the SC & ST Act are not proved. The High Court was, however, of the view that though charge under Section 354 of the IPC was not framed, all the ingredients of that offence were proved. The High Court observed that punishment of offence under Section 354 of the IPC is lesser than the punishment provided for Section 3(1) (xi) of the SC & ST Act. Section 354 of the IPC is a lesser offence as compared to offence punishable under Section 3 (1) (xi) of the SC & ST Act and all ingredients of the offence under Section 354 of the IPC are present in the graver offence namely Section 3(1) (xi) of the SC & ST Act. According to the High Court no prejudice would be caused to the appellant if he is convicted for offence punishable under Section 354 of the IPC which is a minor offence as compared to offence punishable under Section 3(1) (xi) of the SC & ST Act and also because all the facts constituting the offence under Secti