1. The short question that arises in this case is whether a non-compoundable case can be compounded under Section 320 of the Code of Criminal Procedure (for short 'Cr.P.C') ?

Revision petitioners, who are the accused, have preferred this revision petition against the concurrent judgment in Crl.A.33 of 2003 of Sessions Judge, Wayanad. They were charge sheeted in CC.193 of 2001 before Judicial First Class Magistrate II, Mananthavady under Section 323, 326 read with 34 IPC. After trial the learned Magistrate convicted the accused under Section 323 and 326 read with 34 IPC and sentenced to undergo simple imprisonment for six months under Section 323 r/w 34 IPC, sentenced to undergo simple imprisonment for 18 months with fine of Rs.2000/- under Section 326 r/w 34 IPC, in default, simple imprisonment for six months. Against that accused preferred a criminal appeal before Sessions Judge, Wayanad where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, they preferred this revision petition.

2. The charge against the accused is that on 11.11.1996 at 6.30 am, while PW1 was proceeding to the Milk Society, the accused hide near a tree, jumped in front of him, A2 beat with a handle spade, others beat with hands and kicked him, as a result he sustained serious injuries. For this, Mananthavady police registered a crime and after completing investigation, they filed a final report before the trial court. To prove the offence, prosecution examined PW1 to PW4 and marked Ext.P1 to P6. The handle spade was admitted as MO1 by the trial court. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. The accused did not adduce any defence evidence and the trial Magistrate convicted them.

3. When the revision petition came up for hearing, learned counsel appearing for the revision petitioners submitted that the injured is their uncle and they have settled the matter out of court and filed Crl.M.A.4022 of 2016 before this court. I have perused the compromise petition in which both parties have signed. Learned Public Prosecutor identified the injured PW1. Both parties submitted that PW1 is their uncle and they paid Rs.50,000/- to him as compensation under the settlement. According to Section 320(1) Cr.P.C, offences punishable under IPC specified in the first two columns of the table next following may be compounded by the person mentioned in the third column of that table. According to Section 320(2) Cr.P.C, offences punishable under IPC specified in the first two columns of the table next following may be with permission of the court, before which any prosecution for such offence is pending, be compounded by the person mentioned in the third column of that table.

4. When offences are compoundable and the case is committed for trial or the accused is convicted and appeal is pending, the compounding can be allowed with leave of the court. According to Section 320(6) Cr.P.C, High Court or Court of Session in exercise of its power of revision under Section 401 may allow any person to compound any offence with such person who is competent to compound under this section. The principle provided under Section 320(6) clarifies that where parties approach the revisional court to compound a case, the presence of the injured is necessary. Considering the circumstances of the case, permission is granted, provided where the aggrieved party is actually before court and has given his consent. This view has been expressed by Patna High Court in Gurunarayan das v. King Emperor (AIR 1948 Patna 58 and Calcutta High Court in Baburali Sardar and others v. Kala Chand Bepari & others (AIR 1939 Cal 728. When composition of an offence is made, it shall have the effect of an acquittal under Section 320(8) Cr.P.C.

5. The general scheme for compounding an offence has been explained under Section 320 of the Code. But section 320(9) Cr.P.C says that no offences shall be compounded except as provided in the sec