Karnataka High Court
State Of Karnataka, Etc. vs H.S. Revanasiddappa, Etc. on 15 April, 1994
Equivalent citations: 1994(2)ALT(CRI)477, 1994CRILJ2928, ILR1994KAR1542, 1994(2)KARLJ482, 1994 CRI. L. J. 2928, (1995) 1 SCR 819 (SC), 1995 CRILR(SC MAH GUJ) 206, (1995) 1 CURCRIR 117, (1994) 2 KANT LJ 482, (1994) 3 CRIMES 562, 1995 SCC (CRI) 382
JUDGMENT Krishnan, J.
1. An identical question of law arises for consideration in these two appeals, they are being disposal of by this common Judgment.
2. Criminal Appeal No. 593/90 is directed against the permission granted by the JMFC, Chitradurga, in C.C. No. 23/85 for compounding an offence under section 380 of the Indian Penal Code and consequent order of acquittal and Criminal Appeal No. 214/91 is directed against the permission granted by JMFC, Nelamangala, in C.C. No. 111/88 for compounding an offence under section 326 of the Indian Penal Code and the consequent order of acquittal.
3. The State has challenged the orders in these two cases on the ground that the offences with which the accused had been charged in these cases were non-compoundable ones and the learned Magistrate had no jurisdiction to accord permission to compound the said offences and therefore, the entire procedure adopted by the learned Magistrates is illegal and the permission granted to compound the offence and the consequent order of acquittal passed are liable to be set aside.
4. In the first Appeal, the learned Magistrate has relied upon a bench decision of this Court in State of Karnataka v. Basavaraju as enabling him to grant permission to compound the offence under section 380 of the Indian Penal Code. In the second Appeal, the learned Magistrate has relied upon a decision of the Supreme Court in Mahesh Chand v. State of Rajasthan . It may be noticed that Section 320 of the Code of Criminal Procedure (for short 'the Code') refers to the compounding of offences. There is a table of offences occurring under sub-section (1) of this Section and these are offences which could be compunded by the persons mentioned in the third column of that table. These offences could be described as compoundable offence simpliciter. Sub-section (2) of the said Section refers to the offences which are compoundable with the permission of the Court. A table of offences has been given below this sub-section. The offences given under this table could be termed as offences compoundable with the permission of the Court. Sub-section (9) of Section 320 is to the following effect :
"No offence shall be compounded except as provided by this section."
If any offence does not come under any of the two tables referred to above, it is usually called a non-compoundable offence. It is undisputed that the offences under sections 380 and 326 of the Indian Penal Code do not come under any of the two tables adverted to above. If composition of these offences is not permissible either under sub-section (1) or sub-section (2); sub-section (9) mandates that it is an offence which cannot be compounded. It remains to be seen as to whether the two decisions adverted to above enable the subordinate Criminal Courts to grant permission to compound the two non-compoundable offences.
5. In the decision in , the accused had been prosecuted for an offence punishable under section 307 of the Indian Penal Code and the accused had been acquitted by the trial Court but the High Court had convicted him for the offence under Section 307 of the Indian Penal Code. After adverting to the plea made before the Supreme Court to treat it as a special case in view of the peculiar circumstances of the case, the trial Judge was directed to accord permission to compound the offence. The relevant portion of the Judgment is as hereunder (at p. 122 of Cri LJ) :
"We gave our anxious consideration to the case and also the plea put forward for seeking permission to compound the offence. After examining the nature of the case and the circumstances under which the offence was committed, it may be proper that the trial Court shall permit them to compound the offence.
We therefore, direct the trial Judge to accord permission to compound the offence, after giving an opportunity to the parties and after being satisfied with the compromise agreed upon."
6. It may be noticed that the Supreme Court, in this decision, has not considered the aspect whether the subordinate Criminal Courts or High Court have the power to permit the composition of a non-compundable offence. In the facts and circumstances of the said case, after giving their anxious consideration. Their Lordships felt that the trial Court should be given directions as referred to above.
7. Under Article 142 of the Constitution of India, the Supreme Court has got the power to pass such decree or to make such orders as is necessary for doing complete justice in any cause or matter pending before it and the Supreme Court has observed in the decision reported in Union Carbide Corporation. Etc., Etc. v. Union of India Etc., Etc. about its plenary jurisdiction under this article to do complete Justice as hereunder :
"It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the apex Court under Art. 142(1) is unsound and erroneous. In both Garg's as well as Antulay's case the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Art. 142 in so far as quashing of criminal proceedings are concerned is not exhausted by Sections 320 or 321 or 482, Cr.P.C. or all of them put together. The power under Art. 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Art. 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the Court on which conferment of powers - limited in some appropropriate way - is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy."
"It will again be wholly incorrect to say that powers under Art. 142 are subject to such statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Art. 142 and in assessing the needs of "complete justice" of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public-policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Art. 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise."
"There is some justification to say that statutory prohibition against compounding of certain class of serious offences, in which larger social interests and social security are involved, is based on broader and fundamental considerations of public policy. But all statutory prohibitions need not necessarily partake of this quality. The attack on the power of the apex Court to quash the crucial proceedings under Art. 142(1) is ill-conceived. But the justification for its exercise is another matter."
This would make it abundantly clear that the power of the Supreme Court under Article 142 is not restricted by Section 320, 321 or 482 of the Code or all of them put together. It is also clear that the power under this article is not subject to any statutory prohibition and in particular sub-section (9) of Section 320 of the Code so far as we are concerned. Therefore, should be held that the decision gives in Mahesh Chand's case, (1989 Cri LJ 121) by the Supreme Court rested on the plenary jurisdiction it had under Article 142 of the Constitution and it cannot be taken as an authority for the proposition that the Sub-ordinate Criminal Court have the jurisdiction to grant permission to compound a non-compoundable effence in appropriate cases. The observations of the Supreme Court in the decision reported in Biswabahan Das v. Gopen Chandra Hazarika, read as hereunder :
"If a person is charged with an offence then unless there is some provision for composition of it the law must take its course and the charge enquired into resulting either in conviction or acquittal. If composition of an offence was permissible under the law, the effect of such composition would depend on what the law provided for."
This decision is very apposite in the present context with reference to the powers of the subordinate Courts for according permission to compound a non-compoundable offence. The decision of Supreme Court in Suresh Babu v. State of Andhra Pradesh reported in J.T. 1987 (3) SC 361 was cited before Supreme Court, in Mahesh Chand's case (1989 Cri LJ 121). In this decision, Supreme Court granted leave to compound the non-compoundable offence under Section 326 of the Indian Penal Code as a special case taking an overall view of the facts and circumstances of that case and further it was also observed as "This case shall not be treated as a precedent". It may be noted no law regarding Powers of High Court or Sub-ordinate Courts in this regard has been laid down herein. Again except mentioning that it was cited, Supreme Court in Mahesh Chand's case has not followed this decision. Therefore, the learned Magistrate was not right in holding that the decision of the Supreme Court enabled him to grant permission to compound a non-compoundable offence.
8. In the decision in State of Karnataka v. Basavaraju the accused had been prosecuted for an offence under Section 498A of the Indian Penal Code. The concerned parties sought for permission to compound the said offence and the trial Magistrate found that it was eminently a fit case to grant permission and granted the same. The State challenged the correctness of that order of the learned Magistrate in this case and after referring to the observations of the Supreme Court in Mahesh Chand's case, the learned Judges of this Court observed as hereunder :
"It may be added at once that unless there are peculiar circumstances and a case can be said to be a special one, permission to compound any non-compoundable offence should not be granted as a matter of course. It all depends on the circumstances under which the compromise petition comes to be filed. The trial Court kept in its view the welfare of the parties in the matrimonial case of this nature and did not want the feelings between the parties be strained for the rest of their life. Keeping this larger interest of the couple and its impact on the society, the trial Court relied on the above Decision and accorded permission. In our view the trial Court did not commit any error in according permission and as result of compromise acquitting the accused."
9. The observations are to the effect that if there are special and peculiar circumstances, the trial Magistrate has the power to grant composition of even a non-compoundable offence. It was urged by the learned Addl. State Public Prosecutor that this decision rendered by the Division Bench of this Court is a decision per-incuriam for more than one reason. It was urged that the fact the decision in the Mahesh Chand's case was given under the plenary jurisdiction of the Supreme Court vested under Article 142 of the Constitution of India, has not been taken note of and the aspect that the Supreme Court has not decided in that case that the subordinate Criminal Courts or this Court have power to permit composition of non-compoundable offence had been lost sight of. It was also pointed out that the provision of law incorporated in sub-section (9) of Section 320 of the Code that no offence shall be compounded except as provided by this Section has also not been taken note of in this decision and therefore, it is a decision perincuriam. A perusal of the decision in Basavaraju's case makes it clear that sub-section (9) of Section 320 of the Code was not at all brought to the notice of Their Lordships and there is absolutely no discussion in relation to this sub-section.
10. In the decision (P. V. Balakrishna Reddy v. Director of Mines & Geology) on the aspect whether a decision rendered by a single Judge or a Division Bench could constitute a binding precedent, if the attention of the Court had not been drawn to the relevant authorities or statute, this is what has been held by another Bench of this Court :
"It appears to us that the aforesaid decisions either of the learned single Judge or of the Division Bench cannot be held to constitute a binding precedent as the same are given per-incuriam. The attention of the Court had not been drawn to the relevant law having a bearing on the subject. A decision of the Court is not a binding precedent if given per incuriam i.e., without the Court's attention having been drawn to the relevant authorities or statutes."
If only this sub-section (9) of Section 320 of the Code had been brought to the notice of Their Lordships, the decision would have been altogether different. Therefore, we must uphold the contention of the learned State Public Prosecutor that the decision given in Basavaraju's case is a decision per-incuriam and it is not a binding precedent.
11. When our conclusions on the several aspects are as above and when the sub-sections (1) and (2) of Section 320 of the Code respectively enumerate the offences compoundable and compoundable with the permission of the Court and sub-section (9) of the said section mandates that no offence shall be compounded except as provided by this Section, it is our considered view that the subordinate Criminal Courts or this Court has no power to grant permission to compound a non-compoundable offence i.e., the offence which does not come within either of the two tables occurring under sections 320(1) and 320(2) of the Code. In that view of the matter, the orders of the trial Court permitting the composition of the offences under Sections 326 and 380 of the Indian Penal Code cannot be sustained and they should be set aside.
In the result, we set aside the orders of the two learned Magistrates in these two cases permitting composition of the offences and the consequent orders of acquittal passed and remand the cases to their respective files for disposal of the cases according to law ignoring the composition of the offences entered into between the parties.
The appeals are allowed only to the extent indicated above.
12. Appeal allowed.