Back
1996(2) CRIMES 390
ANDHRA PRADESH HIGH COURT (F.B.)
K.M. Agarwal, V. Rajagopala Reddy
and Neelam Sanjiva Reddy, JJ.
Smt. Ghousia Sultana & Ors- Petitioners
versus
Mohd. Ghouse Baig and others - Respondents
Criminal Miscellaneous Petition No. 104 of 1994
Decided on 12-2-1996
Counsel for the parties:
For the Petitioners: M/s. Mirza Nisar Ahmed Baig, Khaja Ziauddin, Mohd. Ali, Mohd. Azam Ghori, P. Harinath Gupta, M.V.S. Suresh Kumar, C. Damodar Reddy, M. Surya Rao, K.M. Mukunda Rao and M. Chandrasekhara Rao.
For the Respondents: Public Prosecutor and M/s. Mohd. Saifuddin Ghori and C. Kailashnath Reddy.
Held: Sub-section (1) of Section 320 of the Code of Criminal Procedure, 1973 enables specified persons to compound certain specified offences punishable under the Indian Penal Code, 1860; and sub-section (2) thereof enables them to compound other specified offences under the Indian Penal Code with the permission of the Court before which any prosecution for such offence is pending. It, therefore, appears that the offences under other enactments cannot be allowed to be compounded by resorting to the provisions of Section 482, Cr. P.C. On the same parity of reasons-, but for the provisions of subsections (1) and (2) of Section 320, Cr. P. C., it may be said that no offence under the Indian Penal Code could also be compounded with or without the permission of the Court. In this context, if we look to the provisions of sub-section (9) of Section 320, Cr. P.C. with says, "No offence shall be compounded except as provided by this section", it would appear that our conclusion aforesaid is correct. (Para 4)
The Supreme Court had an occasion to consider the inherent powers of the High Court under Section 482, Cr. P.C. in reference to the bar provided under Section 397(2), Cr. P.C. and it was held:
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
On these principles when we proceed to examine the question, we find that Section 320(9), Cr. P.C. bars compounding of offences except those mentioned in sub-sections (1) & (2) of Section 320, Cr. P.C. (Para 5)
Exercise of powers under Section 482, Cr. P.C. for permitting compounding of a non-compoundable offence like one under Section 498-A, !PC cannot be equated with the exercise of similar powers with the object of preventing abuse of process of any Court. The object of securing the ends of justice may also be achieved by resorting to the provisions of Section 321, Cr. P.C. and we do not think that even in appropriate cases, the Public Prosecutor or Assistant Public Prosecutor in charge of a case would not agree, with the consent of the Court, to withdraw from the prosecution. (Para 5)
No inherent power under Section 482, Cr. P.C. with the High Court can be inferred for compounding of an offence which is otherwise not compoundable. (Para 5)
No non-compoundable offence under the Code of Criminal Procedure, 1973 can be allowed, or directed to be compounded by the High Court in exercise of its inherent powers under Section 482, Cr. P.C. (Para 6)
Result: Cases directed to be placed before appropriate Bench for disposal.
JUDGMENT
K.M. Agarwal, J. - On the basis of recommendation made by a learned Single Judge of this Court, the following question came up for consideration before a Division Bench:
Whether the High Court can invoke its inherent powers conferred under Section 482 Cr. P.C. and grant permission to the parties to compound the non-compoundable offences, particularly the offence punishable under Section 498A, 1PC to secure ends of justice keeping in view the statutory bar provided under Section 320(9), Cr. P.C.?"
After considering various case laws and noticing the divergence of judicial opinion, the Division Bench came to the conclusion that:
"The divergence of judicial opinion on the question whether a non-compoundable offence could be allowed to be compounded by the High Court in exercise of its inherent power under Section 482, Cr. P.C., needs to be resolved by a Full Bench as the question arises very frequently."
This is how the matter has come up before this Full Bench.
2. Most of the cases under reference relate to an offence under Section 498-A, IPC but one of them also relates to an offence under Section 409, IPC and yet another relates to some other offence punishable under the provisions of the Negotiable Instruments Act, 1881 and not under the Indian Penal Code. Be that as it may, the nature of offence does not appear to be of any significance for answering the larger question that has been posed before us.
3. Why the learned Single Judge considered it necessary to refer the case to a Larger Bench can be gathered from the following facts mentioned by the Division Bench in its order of reference.
"A Division Bench of this Court in Smt. Daggupati Jayalakshmi v. State (1993 A.P.L.J. (Crl.) 269) has laid down the proposition that the High Court, in exceptional cases pertaining to matrimonial matters, can grant permission for compounding offences although they are not compoundable under Section 320, Cr. P.C. The Division Bench observed:
We are of the firm view that in matrimonial cases, that too, in exceptional circumstances where the disputes arose between the wife and husband resulting in filing a complaint and a petition for divorce which ultimately resulted in the form of compromises either for divorce or for re-union, and where some of the sections complained of are compoundable and some non-compoundable, the High Court alone is competent, exercising the inherent power vested in it under Section 482, Cr. P.C. to permit the parties to compound a non-compoundable offence along with other compoundable offences, after being satisfied with the compromise entered into between the parties. The Magistrate or the Sessions Judge, who are not having inherent powers, have no power to accord permission to compound a non-compoundable offence. The application for compounding a non-compoundable offence can be filed by either of the parties to the compromise before the High Court.
A learned Single Judge of this Court - B. Sudershan Reddy, J., - in Annamdevula Srinivasa Rao v. State of A.P. (1995 (3) ALD 349), after reviewing the case-law on the subject, has concluded that the High Court has no power and jurisdiction to direct the subordinate criminal courts to permit the parties to compound offences, which are otherwise non-compoundable in exercise of the inherent jurisdiction under Section 482, Cr. P.C. and on that view, declared' the decision of the Division Bench in Smt. Daggupoli Jayalakshmi (supm) per incuriam and so not a binding precedent. Adverting to the decision of the Supreme Court in Mahesh Chand v. State of Rajasthan (AIR 1988 SC 2111), the learned Judge observed that the directions issued by the Supreme Court in that case were traceable to Article 142 of the Constitution of India, which stand on a totally different footing."
Having found so, the referring Division Bench considered various decisions of the Supreme Court dealing with the powers of the High Court under Sec. 482, Cr. P.C. as also the case of Mahesh Chand v. Stat
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
