Kerala High Court
Thankamma vs State Of Kerala on 8 August, 2006
Author: R. Basant
Bench: K.S.Radhakrishnan, V.Ramkumar, R. Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2367 of 2005()
1. THANKAMMA, AGED 51, W/O. SAITHU MOHAMMED
... Petitioner
2. NAZIR, AGED 28, S/O. SAITHU MOHAMMED,
3. SHAKEELA, AGED 28, W/O. RASSAK,
4. ISMAIL, AGED 39, S/O. KASIM,
5. RASHEEDA, AGED 33, W/O. ISMAIL,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.PEEYUS A.KOTTAM
For Respondent :SRI.S.DILEEP (KALLAR)
The Hon'ble MR. Justice K.S.RADHAKRISHNAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :08/08/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2367 of 2005
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Dated this the 14th day of July, 2006 O R D E R OF REFERENCE Can a non-compoundable offence be legally compounded by the victim of the offence? Can such composition be accepted by criminal courts exercising original, appellate or revisional powers under the Criminal Procedure Code? These are the crucial and vital questions that arise for consideration in this revision petition.
2. The skeletal relevant facts first. The petitioners have been found guilty, convicted and sentenced in a prosecution, inter alia, under Section 498A I.P.C. All other offences for which they have been found guilty are admittedly compoundable under Section 320 Cr.P.C. Offence under Section 498A I.P.C. is not declared by law to be compoundable. The defacto complainant/victim/wife and the revision petitioners/accused have filed a joint application for composition under Section 320 Cr.P.C. They are duly represented by counsel and there can be no doubt that the parties have willingly and Crl.R.P.No. 2367 of 2005 2 voluntarily settled their disputes. The spouses are now living together as husband and wife, it is further submitted.
3. The petitioners have not chosen to file any application under Section 482 Cr.P.C. to quash the proceedings. But, instead, have approached this court with a prayer to invoke its revisional powers to accept the composition and allow the revision petition. It is in this context that the question arises for consideration.
4. The counsel for both sides submitted that there can be no doubt on the questions raised above atleast in Kerala now after the decision in Baiju v. S.I. of police & anr. ( ILR 2006 Vol.2 Kerala 747). When an application for composition is filed by the victim, it is for the criminal court exercising original, appellate or revisional powers to decide whether such composition ought to be accepted in the light of the principles enumerated in paragraphs 10 and 11 of the decision in Baiju (supra) and take an appropriate decision, contend the learned counsel. In particular, reliance is placed on paragraph 11 of the said decision, which reads as follows:
"11. It can safely be concluded that where the interest of the public are not rightly affected, the complainant may be permitted to come to a compromise Crl.R.P.No. 2367 of 2005 3 with the party, against whom he had originally complained of, and the offence being those mentioned under Section 320 of the Code. But in case of non-compoundable offence, and not mentioned under Section 320 of the Code, the courts should consider the facts and circumstances of each case and allow the parties to compromise, thereby to restore an amicable and harmonious relationship between the parties, which otherwise would likely to result in an enduring feud. In view of the above basic principle laid down by the Apex Court, as well as to maintain amity and harmony among the persons involved in a crime, it is necessary for the Court to grant permission to compound the offence, even if they are not compoundable as per the procedure, and also that such offence does not seriously affect the interest of the public at large."
(emphasis supplied)
5. I have gone through the said decision carefully. I must say that I am respectfully unable to agree with the observations therein. I have no hesitation to agree that invoking the extra ordinary inherent powers available to the High Court under Section 482 Cr.P.C. or the plenary powers vested in the High Court or the Supreme Court, the High Court or the Supreme Court may in appropriate cases in the interests of justice and to prevent miscarriage of justice quash a criminal prosecution. The interests of justice, in certain exceptional cases, may transcend the interests of mere law. It may be possible for the Constitutional courts in such an exceptional Crl.R.P.No. 2367 of 2005 4 case to quash proceedings before the criminal courts even in respect of non- compoundable offences on the ground that the parties have settled their disputes and the victim has compounded the offence committed. But that is not to say that the distinction between the compoundable and non- compoundable offences under the Cr.P.C. is obliterated. Criminal courts whether exercising original, appellate or revisional jurisdiction cannot be and are not permitted by law to bypass the statutory restrictions and limitations under Section 320 Cr.P.C. They cannot embark on any independent enquiry ignoring S. 320 as to whether composition can be accepted or not.
6. All criminal offences jurisprudentially are offences against the State and the State/the polity/community as a whole is the aggrieved victim in a criminal offence. There can be no composition of any criminal offence by any member of the community including the victim as the State is the real victim in a criminal case, though injury may have been suffered by a private individual. Exception to this rule is recognised in Section 320 Cr.P.C. Considering the nature of the offences - the peculiarity of specific offences - it is declared in S.320 that certain offences are compoundable. Crl.R.P.No. 2367 of 2005 5 Such clarssfication, it is significant, is not based solely on the maximum punishment which can be imposed even. Sec. 320 virtually classifies the offences into three categories. They are:
(1) Offences which are compoundable by persons mentioned in column 3 under Section 320(1) Cr.P.C. even without the permission of the court.
(2) Secondly offences that are compoundable by parties with the permission of the court under Section 320(2) and (3) Thirdly those that are not compoundable at all by private individuals/victims - i.e. those do not fall under clauses (1) or (2) above.
7. The legislative purpose is clear and is according to me eloquently expressed. Non-compoundable offences cannot be compounded. The decisions of the Supreme court referred to in Baiju (supra) do not, according to me, obliterate the distinction between compoundable and non- compoundable offences. In fact one of the decisions, in Y. Suresh Babu v. State of A.P. (2005) 1 SCC 347), clearly shows that the same should not be treated as a precedent. The fact that constitutional courts in exceptional Crl.R.P.No. 2367 of 2005 6 cases have invoked the extra ordinary powers vested in them under Section 482 Cr.P.C. or Articles 226, 227, 32, 141 or 142 of the Constitution in aid of justice to enable persons to bring the proceedings before the criminal court to a premature termination or that criminal courts while exercising original, appellate or revisional powers have or have been permitted to take note of the composition of the non-compoundable offences by the victim while exercising the sentencing discretion cannot lead one to the conclusion that all criminal courts can hereafter permit composition of non-compoundable offences ignoring the mandate of S. 320 Cr.P.C. Such an approach is bound to create confusion. I respectfully disagree with the dictum in Baiju (supra), The matter deserves to be considered and decided by a Division Bench. The legal question has to be settled first. Law must be certain. Expediency or mere convenience cannot persuade courts to go against the mandate of S.320 Cr.P.C. The risk of subordinate courts conveniently ignoring the mandate of S.320 has to be avoided.
8. I, therefore, think it necessary to refer the matter for decision by a Division Bench under Section 3 of the Kerala High Court Act.
9. Needless to say, the petitioners herein can request the court to Crl.R.P.No. 2367 of 2005 7 consider the application for composition as virtually a prayer to quash the proceedings by invoking the powers under Section 482 Cr.P.C. That request can be considered only after the controversy raised in law is resolved. The counsel pray that the matter may be decided emergently. In these circumstances it is directed that the Registry shall place this before the Division Bench for hearing on 18.7.2006.
(R. BASANT) Judge tm tm