1999 JTR(SC) 591
1999 2 AICLR 415 ; 1999 AIR(SC) 2181 ; 1999 AIR(SCW) 2199 ; 1999 1 ALD(Cri)(SC) 874 ; 1999 38 AllCriC 942 ; 1999 AllMR(Cri)(SC) 1267 ; 1999 2 BBCJ(SC) 71 ; 2000 5 BomCR(SC) 99 ; 1999 2 CHN(SC) 36 ; 1999 CriLR 324 ; 1999 3 Crimes(SC) 37 ; 1999 CrLJ 3496 ; 1999 2 CTC 263 ; 1999 3 EastCrC(SC) 304 ; 1999 3 JT 408 ; 2000 1 KLJ 3 ; 2000 1 KLJ(NOC) 3 ; 1999 2 RCR(Cri) 683 ; 1999 RLR 370 ; 1999 3 Scale 103 ; 1999 5 SCC 238 ; 1999 SCC(Cri) 998 ; 1999 2 SCR 1005 ; 1999 2 UJ 831 ; 1999 4 Supreme 421
1999(4) Supreme 421
Supreme Court of India
(From Orissa High Court)
K.T. Thomas, M.B. Shah and D.P. Mohapatra, JJ.
Surendra Nath Mohanty & Anr. -Appellants
versus
State of Orissa -Respondent
Criminal Appeal Nos. 497-98 of 1999
(Arising out of SLP (Crl.) Nos. 196-197/1999)
Decided on 4-5-1999
Counsel for the Parties :
For the Appellants : Vijay Hansaria, Sunil Jain, Advocate for M/s. Jain Hansaria & Co., Advocates.
For the Respondent : Jana Kalyan Das, Advocate.
Important Point
Offence under Section 326 IPC cannot be allowed to be compounded in view of legislative mandate contained in Section 320(9) of Cr.P.C.
(A) The relevant provisions of the Indian Penal Code and the Code of Criminal Procedure, 1973, govern the present appeal concerning convictions for offences causing grievous hurt. Sections 326, 325, 324, and 323 read with Section 34 of the Indian Penal Code relate to acts of voluntarily causing grievous hurt and common intention, while Section 307 relates to attempt to murder. Section 320 of the Code of Criminal Procedure specifies the offences that are compoundable and the procedure for compounding, and sub-section (9) thereof mandates that no offence can be compounded except as strictly provided therein, thereby excluding non-compoundable offences such as those under Section 326 from being compounded by court order.
(B) Key legal principles include that the nature and extent of injuries and the manner of infliction are crucial in determining the specific offence, such as distinguishing between grievous hurt and attempt to murder; the doctrine of perincuriam applies where prior decisions overlook mandatory procedural provisions; and while compromise may be a relevant sentencing factor, it does not automatically permit compounding of non-compoundable offences. The court also retains discretion to reduce sentence on grounds of settlement and duration of imprisonment already undergone, while ensuring that the ends of justice are met.
Facts of the case:
The appellants were convicted and sentenced under Sections 307, 326, 325, 324, and 323 read with Section 34 of the Indian Penal Code for offences involving causing grievous hurt and attempt to murder, following an incident where a car struck injured persons. The High Court set aside the conviction under Section 307 but altered the convictions under Sections 326, 325, 324, and 323, imposing a sentence of six months' rigorous imprisonment and a fine for Section 326, with no separate sentence on other counts. The appellants challenged this order, contending that the dispute was amicably settled and the offences were compoundable, while the respondent argued that Section 326 is non-compoundable and the High Court correctly rejected the application.
Findings of Court:
The High Court correctly determined that the injuries and manner of impact did not support a conviction under Section 307. It also correctly held that the offence under Section 326 is non-compoundable as per the Code of Criminal Procedure and that earlier decisions allowing compounding were perincuriam for not considering sub-section (9) of Section 320. Considering the settlement, the elapsed time, and the imprisonment already undergone, the court reduced the sentence to the period already served and imposed an additional fine, while refraining from separate sentences on other counts.
Issues:
Whether non-compoundable offences under the Indian Penal Code can be compounded by court order when the parties settle the dispute, and whether the High Court appropriately exercised discretion to reduce sentence in view of settlement and prior detention.
Ratio Decidendi:
The offences punishable under Section 326 are non-compoundable under Section 320(9) of the Code of Criminal Procedure, and a prior decision allowing compounding without considering this provision is perincuriam; however, the court may reduce the sentence considering settlement and time already undergone, leading to substitution of rigorous imprisonment with simple imprisonment and a monetary fine, with compensation to the victim.
Result:
The appeals are allowed in part, with the sentence reduced to the period already undergone plus a fine of Rs. 5000/- on each accused under Section 326 read with Section 34, no separate sentence on other counts, and if the fine is not paid, additional simple imprisonment for three months; compensation of Rs. 9,000/- is directed to be paid to the injured.
(A) The relevant provisions of the Indian Penal Code and the Code of Criminal Procedure, 1973, govern the present appeal concerning convictions for offences causing grievous hurt. Sections 326, 325, 324, and 323 read with Section 34 of the Indian Penal Code relate to acts of voluntarily causing grievous hurt and common intention, while Section 307 relates to attempt to murder. Section 320 of the Code of Criminal Procedure specifies the offences that are compoundable and the procedure for compounding, and sub-section (9) thereof mandates that no offence can be compounded except as strictly provided therein, thereby excluding non-compoundable offences such as those under Section 326 from being compounded by court order.
(B) Key legal principles include that the nature and extent of injuries and the manner of infliction are crucial in determining the specific offence, such as distinguishing between grievous hurt and attempt to murder; the doctrine of perincuriam applies where prior decisions overlook mandatory procedural provisions; and while compromise may be a relevant sentencing factor, it does not automatically permit compounding of non-compoundable offences. The court also retains discretion to reduce sentence on grounds of settlement and duration of imprisonment already undergone, while ensuring that the ends of justice are met.
Facts of the case:
The appellants were convicted and sentenced under Sections 307, 326, 325, 324, and 323 read with Section 34 of the Indian Penal Code for offences involving causing grievous hurt and attempt to murder, following an incident where a car struck injured persons. The High Court set aside the conviction under Section 307 but altered the convictions under Sections 326, 325, 324, and 323, imposing a sentence of six months' rigorous imprisonment and a fine for Section 326, with no separate sentence on other counts. The appellants challenged this order, contending that the dispute was amicably settled and the offences were compoundable, while the respondent argued that Section 326 is non-compoundable and the High Court correctly rejected the application.
Findings of Court:
The High Court correctly determined that the injuries and manner of impact did not support a conviction under Section 307. It also correctly held that the offence under Section 326 is non-compoundable as per the Code of Criminal Procedure and that earlier decisions allowing compounding were perincuriam for not considering sub-section (9) of Section 320. Considering the settlement, the elapsed time, and the imprisonment already undergone, the court reduced the sentence to the period already served and imposed an additional fine, while refraining from separate sentences on other counts.
Issues:
Whether non-compoundable offences under the Indian Penal Code can be compounded by court order when the parties settle the dispute, and whether the High Court appropriately exercised discretion to reduce sentence in view of settlement and prior detention.
Ratio Decidendi:
The offences punishable under Section 326 are non-compoundable under Section 320(9) of the Code of Criminal Procedure, and a prior decision allowing compounding without considering this provision is perincuriam; however, the court may reduce the sentence considering settlement and time already undergone, leading to substitution of rigorous imprisonment with simple imprisonment and a monetary fine, with compensation to the victim.
Result:
The appeals are allowed in part, with the sentence reduced to the period already undergone plus a fine of Rs. 5000/- on each accused under Section 326 read with Section 34, no separate sentence on other counts, and if the fine is not paid, additional simple imprisonment for three months; compensation of Rs. 9,000/- is directed to be paid to the injured.
Judgment
Shah, J.-Leave granted.
2. These appeals are filed against the judgment and order dated 5th September, 1997 and 10th November, 1997 passed by the High Court of Orissa at Cuttack in Criminal Revision No. 436 of 1994 and Miscellaneous Case No. 521 of 1997 whereby Revision Petition against the conviction order and the application for correction, alteration and for compounding offence filed by the appellants were rejected.
3. The appellants were convicted and sentenced under Section 307, 326, 325, 324 and 323 read with Section 34, IPC and sentenced to 5 years R.I. and fine of Rs. 200/- in default of payment of which to undergo R.I. for one month. That Order was challenged before the High Court by filing Criminal Revision No. 436 of 1994. After considering the entire evidence on record, the Court held that from the nature and extent of the injuries sustained by the injured, and also from the manner in which the car struck against the injured, it was difficult to come to a conclusion that the intention of the accused was to kill the injured and, therefore, it would be hazardous to uphold their conviction under Section 307 IPC. After considering the injuries caused to the witness, the High Court altered the conviction of the appellants under Section 326, 325, 324 and 323 read with Section 34 IPC and having regard to the facts and circumstances of thecase and the affidavit of the witness produced on record, the Court imposed sentence of six month’s R.I. and fine of Rs. 1,000/- in default of payment of which to undergo R.I. for further three months for the offence under Section 326 IPC and no separate sentence was imposed on the other counts of offences. Against that order, these appeals are filed by special leave.
4. It is vehemently contended by the learned Counsel for the appellants that as the dispute was amicably settled and the matter was compromised, the High Court ought to have granted permission to compound the offences and ought not to have convicted the appellants and imposed the sentence. For this purpose, reliance is placed upon the decisions of this Court in Ram Pujan & Ors. v. State of Uttar Pradesh1 and Mahesh Chand & Anr. v. State of Rajasthan2. As against this, learned Counsel for the respondent submitted that the offence under Section 326 is not compoundable and the High Court has rightly rejected the application for compounding the same. He, for this purpose, relied upon the Judgment of this Court in Ram Lal & Anr. v. State of J & K3 wherein after referring to Section 320(9) of the Code of Criminal Procedure, the Court observed that the decision in Mahesh Chand (supra) was rendered perincuriam.
5. In our view, submission of the learned Counsel for the respondent requires to be accepted. For compounding of the offences punishable under the Indian Penal Code, complete scheme is provided under Section 320 of the Code of Criminal Procedure, 1973. Sub-Section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in Column No. 3 of the said table. Further, sub-Section (2) provides that, the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, sub-section (9) specifically provides that “no offence shall be compounded except as provided by this Section.” In view of the aforesaid legislative mandate, only the offences which are covered by table 1 or 2 as stated above can be compounded and the rest of the offences punishable under Indian Penal Code could not be compounded.
6. Further, decision in Ram Pujan’s case (supra) does not advance the contention raised by the appellants. In the said case, the Court held that the major offences for which accused have been convicted were no doubt non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence. In Ram Lal (supra), the Court referred to the decision of this Court in Y. Suresh Babu v. State of A.P. & Anr.4 and held as under:-
“We gave out 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.”
7. In the case of Y. Suresh Babu the Court has specifically observed that the said case “shall not be treated as a precedent.” The aforesaid two decisions are based on facts and in any set of circumstances, they can be treated as perincuriam as pointed attention of the court to sub-section (9) of Section 320 was not drawn. Hence, the High Court rightly refused to grant permission to compound the offence punishable under Section 326.
8. We reiterate that the course adopted in Ram Pujan v. State of U.P. & Ors. and Mahesh Chand & Anr. v. State of Rajasthan (supra) was not in accordance with law. However, considering the fact that parties have settled their dispute outside the Court and the fact that 10 years have elapsed from the date of the incident and the further fact that appellants have already undergone 3 months imprisonment as per the sentence imposed on them, we think that ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs. 5000/- on each of the accused under Secton 326 read with Section 34, IPC. We reduce the sentence as indicated above and direct that in default of payment of fine, the appellant concerned shall undergo simple imprisonment for a further period of three months. We also refrain from imposing any separate sentence on the other counts of offences. Out of the fine amount, if realised, a sum of Rs. 9,000/- also be paid to the injured as compensation.
9. The Appeals stand disposed of accordingly.
(C.R.) Appeal disposed of accordingly.
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