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2008 (3) Crimes 79 (Ker.)
KERALA HIGH COURT
R. Basant, J.
Y.P. Baiju—Petitioner
versus
State of Kerala and Ors.—Respondents
Crl. MC No. 3215 of 2007
Decided on 30.10.2007
Held: I am afraid, reference to Section 257, Criminal Procedure Code to understand the meaning of the expression compound in Section 320, Criminal Procedure Code would be an incorrect and improper exercise. Section 257, Criminal Procedure Code applies only to summons cases. It applies only to cases instituted on a private complaint. Sections 257 and 320, Criminal Procedure Code do not hence cover the same field. Whether the offences be compoundable or not, withdrawal under Section 257 Criminal Procedure Code is permissible. Many summons offences are non-compoundable under Section 320, Criminal Procedure Code. Whether the offence be compoundable or not, if the prosecution is in respect of a summons case and the prosecution is instituted on a private complaint, the complaint can be withdrawn by the complainant under Section 257, Criminal Procedure Code. Section 257 has no application at all in a case instituted on a police report. Similarly, many a compoundable offence under Section 320, Criminal Procedure Code is not a summons offence and therefore Section 257, Criminal Procedure Code can have no application at all. In these circumstances it must be seen that though there may be overlapping on certain aspects in the sense that a prosecution comes to an end in both cases on account of the conduct of the complainant. Section 257 cannot be advantageously pressed into service to understand and assimilate the concept of composition under Section 320, Criminal Procedure Code.
I shall assume, that there is distinction between the concept of withdrawal and concept of composition. Withdrawal can be without any reason. Compounding, going by the language, is forbearance from prosecution for any consideration. That distinction in language notwithstanding, it must be held that such distinction does not at all affect the operational dynamics of Section 320, Criminal Procedure Code.
The conclusion in these circumstances appears to be inescapable that composition is and must be held to be a unilateral act. If that be so, a criminal Court will not be justified in insisting on a joint application for composition from the accused and the victim. Consequently, it has to be held that the physical appearance of an indictee is unnecessary and cannot be insisted to accept the composition by the victim.
In a case where permission of the Court is required under Section 320(2) Criminal Procedure Code the Court will have to exercise its discretion to grant or not to accord permission to the victim for composition. That takes me then to the next question whether at least in such cases the Court will be justified in insisting on the personal appearance of the accused. It may not be possible for this Court now to visualise all the myriad fact circumstances which may appear in a rare possible given case. Suffice it to say that at the moment no such facts occur to me in which it may be necessary or essential for a Court to insist on the personal presence of the accused to consider whether permission must be given to the victim to compound the offence against the accused.(Paras 11 to 14)
The only point that remains to be considered is whether a non-bailable warrant having been issued, it is necessary now to insist on the personal appearance of the accused, before the Court moves to the next stage. Nothing can be farther from reasonableness than this attitude of rigidly insisting on the personal presence of the accused if a non-bailable warrant has already been issued. A non-bailable warrant is also only a process issued to procure the presence of a person. If the Court is satisfied that such personal presence is not necessary, it, will be puerile, unnecessary and unreasonable to insist on such appearance merely because a warrant has already been issued. Whatever can be done in the absence of an accused can certainly be performed notwithstanding the issue/pendency of a non-bailable warrant against such person. In that view of the matter, the pendency of the non-bailable warrant cannot persuade the Court not to consider the prayer for composition and insist on the personal appearance of the accused.(Para 19)
I shall now attempt to narrate my conclusions. They are:
(1)Composition under Section 320. Criminal Procedure Code is a unilateral act.
(2)The victim [person shown in column 3 of Sections 320(1) and 320(2)] can himself make an application for composition.
(3)It is not necessary for the Court to insist on a joint application for composition. The victim can of course make a joint application along with the accused.
(4)It is not necessary for the Court to insist on the personal appearance of the accused before Court to consider an application for composition under Section 320 Criminal Procedure Code.
(5)The mere fact that the Court has already issued a non-bailable warrant against the accused and that is pending is no reason for the Court not to proceed further with the case. All steps for which personal presence of the accused is not necessary can be continued even if the non-bailable warrant remains unexecuted and the accused has not personally appeared.(Para 21)
Result: Petition allowed.
ORDER
R. Basant, J.—Is composition of a criminal offence a unilateral act or a bilateral one? Is it necessary to insist on the appearance of an accused person to enable the victim to compound a criminal offence? Is a Criminal Court justified in insisting on a joint application for composition by the victim and the accused for invoking the power under Section 320, Criminal Procedure Code to accept and/or accord permission for a composition? Is there any distinction between “withdrawal” of a complaint under Section 257, Criminal Procedure Code and composition of an offence under Section 320, Criminal Procedure Code? Even if there be such a distinction, is that distinction relevant in the dynamics of operation under Section 320, Criminal Procedure Code? Does such alleged distinction justify insistence by the Court on the personal appearance of the accused to consider an application for composition? In a case where the Court has chosen to issue non-bailable warrant against the accused, is it essential that such accused must appear personally before the Court for any further steps, even for a further step for which personal presence of the accused is not essential? The above questions of daily relevance, recurrence and significance before a criminal Court arise for consideration in this Cri. M.C.
2. Bereft of details, the crucial facts in the case can be summarised thus: Three persons together filed a joint complaint before the City Police Commissioner, Ernakulam. The allegation was that the accused, the petitioner herein, had committed the offence of cheating and breach of trust punishable under Sections 406 and 420 IPC. Final report was filed. Cognizance was taken by the learned Magistrate. The petitioner received process. He along with the complainants/victims appeared before the learned Magistrate through counsel and filed an application for composition. The learned Magistrate, it is submitted, insisted on personal appearance of the petitioner and his being released on bail as a condition precedent to permit composition. The petitioner could not arrange sureties and could not appear before the learned Magistrate. Warrant of arrest has been issued against him. The petitioner wants the powers under Section 482, Criminal Procedure Code to be invoked to direct the Magistrate to consider the application for composition without insisting on his personal presence, notwithstanding the issue of a non-bailable warrant against him. It is in this fact scenario that the above questions have come up for hearing.
3. What is composition of a criminal offence? A look at the very fundamentals may be helpful. There is a basic and axiomatic fiction in criminal jurisprudence—that all crimes are offences against the State. There may be personally aggrieved individuals also because of the commission of the crime. But in all crimes, the real aggrieved is and ought to be the State representing the entire polity. Whether it be unmerited acquittal or conviction, the real loser, the aggrieved, fictionally is the State. The State may condone and compound the crimes. The provisions of Sections 321, 432 and 433, Criminal Procedure Code deal with the powers of the Court to forebear from prosecuting an inductee and not compelling him to suffer the punishment.
4. Consequentially no private citizen, even if he be the direct victim of the crime, can settle, compromise or compound any criminal offence. Such a composition is not permitted by law ordinarily. It is against public policy to permit settlement, compromise or composition or felony. But this principle of law admits exceptions. The law declares certain offences to be compoundable. Except those offences which are declared by law to be compoundable, no other offence is compoundable. Litigants resort to the unethical, immoral or amoral course of turning hostile on oath to give effect to such non-permissible compromise, settlement or compounding. But the policy of law is not to accept such composition/settleme
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