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IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice R.M. Lodha
The Hon’ble Mr. Justice Anil R. Dave
The Hon’ble Mr. Justice Sudhansu Jyoti Mukhopadhaya
Special Leave Petition (Crl.) No. 8989 of 2010
Gian Singh
v.
State of Punjab & Anr.
{Decided on 24/09/2012}
Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction--In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
(B) Criminal Procedure Code, 1973, S.482--Quashing--Power of High Court--Law summed up--Held;
(i) The power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code.
(ii) Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court.
(iii) In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed--However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime.
(iv) Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society.
(v) Any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.
(vi) Criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute--In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. (Para 57)
(C) Criminal Procedure Code, 1973, Ss.320 & 482--Compounding of offences--Quashing of non-compoundable offences--Law laid is case B.S. Joshi, Nikhil Merchant and Manoj Sharma cases are based on correct interpretation of law and are upheld. (Para 58)
Mr. R.M. Lodha, J.: - When the special leave petition in Gian Singh v. State of Punjab and another came up for hearing, a two-Judge Bench (Markandey Katju and Gyan Sudha Misra, JJ.) doubted the correctness of the decisions of this Court in B.S. Joshi and others v. State of Haryana and another, (2003) 4 SCC 675, Nikhil Merchant v. Central Bureau of Investigation and another, [2008(5) Law Herald (SC) 3237] : (2008) 9 SCC 677 and Manoj Sharma v. State and others, [2008(6) Law Herald (SC) 4118] : (2008) 16 SCC 1 and referred the matter to a larger Bench. The reference order reads as follows:
“Heard learned counsel for the petitioner. The petitioner has been convicted under Section 420 and Section 120B, IPC by the learned Magistrate. He filed an appeal challenging his conviction before the learned Sessions 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 along with the main appeal. Thereafter, the petitioner filed a petition under Section 482, Cr.P.C. for 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. Learned counsel for the petitioner has relied on three decisions of this Court, all by two Judge Benches. They are B.S. Joshi v. State of Haryana (2003) 4 SCC 675; Nikhil Merchant v. Central Bureau of Investigation and Another (2008) 9 SCC 677; and Manoj Sharma v. State and Others (2008) 16 SCC 1. In these decisions, this Court has indirectly permitted compounding of non-compoundable offences. One of us, Hon’ble Mr. Justice Markandey Katju, was a member to the last two decisions.
Section 320, Cr.P.C. mentions certain offences as compoundable, certain other offences as compoundable with the permission of the Court, and the other offences as non- compoundable vide Section 320(7).
Section 420, IPC, one of the counts on which the petitioner 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 offence and since it is a non-compoundable offence, we cannot permit it to be compounded.
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 indirectly. In our, prima facie, opinion, non-compoundable 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 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.
Let the papers of this case be placed before Hon’ble Chief Justice of India for constituting a larger Bench.”
2. This is how these matters have come up for consideration before us.
3. Two provisions of the Code of Criminal Procedure, 1973 (for short, ‘Code’) which are vital for consideration of the issue referred to the larger Bench are Sections 320 and 482. Section 320 of the Code provides for compounding of certain offences punishable under the Indian Penal Code, 1860 (for short, ‘IPC’). It reads as follows:
“S. 320. Compounding of offences.
(1) The offences punishable under the sect
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