TMI Blog2007 (11) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court in revision cannot be modified by a proceedings u/s 482. Once the compounding is accepted by the court, court cannot impose any sentence. Imposition of fine and ordering imprisonment in default of payment of fine, after acquitting the accused is foreign to criminal law. After acquitting a person he cannot be sentenced either with imprisonment or fine. That is not possible. Inherent jurisdiction cannot be used for sentencing a person by imposing a fine even after acquitting him, bye passing the statutory provisions. Justice can be administered only according to law. Imposition of fine is different from imposition of cost or compensation. We are of the opinion that, once the compounding is permitted, it will have the effect of an acquittal and not further imposition of fine or any type of sentence can be passed in view of Section 320(8). We are of the view that even if relief u/s 482 is a discretionary, judicial discretion cannot be exercised to discriminate between person to person. It must be applicable to all similarly situated persons. Mere delay or inconvenience in approaching Supreme Court is not a ground for invoking jurisdiction u/s 482. Thus, we over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he main questions to be considered in this case. In Sabu George v. Home Secretary 2007 (1) KLT 9821 it was held by the learned Single Judge of this Court that offence under Section 138 can be compounded even after confirmation of the conviction by the High Court in revision and considering the subsequent by the High Court in revision and considering the subsequent facts of compromise, necessary relief can be given in a petition under Section 482 of the Cr.P.C. by this Court. Another learned Single Judge of this Court expressed doubt about the correctness of the above decision and thus referred this matter to the Division Bench. 2. Before answering the reference, we shall consider the facts of this case. A cheque issued by the accused for an amount of ₹ 25,000/- was dishonoured for insufficiency of funds and he faced charges under Section 138 of the N.I. Act. After trial, he was convicted by the Magistrate Court and sentenced to undergo simple imprisonment for one year with a fine of ₹ 5,000/-. His conviction was confirmed. In appeal but sentence was modified and he was sentenced to undergo simple imprisonment for three months. In revision application, this Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtained. A proceeding which has culminated in a final order cannot, in my view, be revived by filing a compounding petition. 3. In Sabu George's case, this Court has considered two petitions. In one case after confirmation of conviction by this Court in revision petition (Cr.R.P. No. 7/2004), CrLMA. No. 8626/2006 was filed for compounding the case. Later Cr.M.C. No. 259/2007 was also filed under Section 482 of the Cr.P.C. for compounding the case. In the next case after confirmation of the conviction under Section 138 of the N.I. Act, W.P.(C) No. 34540/ 2006 was filed to compound the case. Court granted following reliefs: 31. In both these cases, I find that an amount of ₹ 2,000/- is to be paid to the State as fine and in these circumstances the powers under Section.482 Cr.P.C. can be invoked only subject to the condition that such amounts must be paid to the State by the respective petitioners. Such a stipulation shall ensure the interests of justice eminently. 32. To sum up, I take the view that in case falling under Section.320(1) Crl.P.C. where there has been a post revision composition of the offence by the victim/complainant, the jurisdiction under Section. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted for trial or when he has been convicted and an appeal is pending no composition for the offence shall be allowed without the leave of the court to which he is committed, or, as the case may be, before which the appeal is to be heard. (6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this section. (7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence. (8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. (9) No offence shall be compounded except as provided by this section. Section.147:- Offences to be compoundable: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable. 5. Section 147 of the N.I. Act was incorporated by Negotiable Instruments Amendment and Miscellaneous Provisions) Act, 2002. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be compounded. A dispute relating to a crime can be compromised even before case is registered, and in that case, victim of the crime may refuse to file a complaint. But if inspite of compromise, if he flied a complaint and court finds that what is compromised is a compoundable offence, depending upon the facts and circumstances of each case Magistrate can refuse to take cognizance, or acquit the accused as offence was compounded or the complaint can be quashed in a proceedings under Section 482. If an offence which is not compoundable under law is compromised, Magistrate can ignore the same and proceed with the crime. But once a crime is registered and court takes cognizance of the case, the offence can be compounded only as provided under Section 320 Cr.P.C. Offence under Table I can be compounded without previous permission of the court and Table II with previous permission. But it will have the effect of acquittal only when it is accepted by the concerned court. Section 320 only deals with compounding of offence pending either before the trial court or before the appellate court or revisional court. Compromise is defined in Black's Law Dictionary, Seventh Edition, as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of a criminal complaint by victim cannot be taken as compounding of the offence, even if such decision is taken on the basis of a compromise between the parties. Now offence under Section 324 IPC is non compoundable. If a victim of that offence refuses to file a complaint we cannot say that the offence is compoundable. But compounding cannot be equivalent to mere non prosecution of complaint and, in any event, once a person is convicted, compounding has to be permitted by the appellate court or revisional court, as the case may be, to have the effect of an acquittal of the accused. A criminal case instituted on the terms of private complaint may result in acquittal of the case if complainant party is not adducing any evidence but that is different from compounding an offence. In this case, crime was registered, trial was conducted and petitioner accused was convicted by the trial court. Conviction was confirmed by the appellate court and revisional court and the conviction became final. Then the real question before us is that after confirmation of conviction, whether compounding of the offence can be accepted and whether court can review the conviction on the basis of subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if it is not compoundable. As held by the Apex Court in Indian Bank v. ABS Marine Products Pvt. Ltd. AIR 2006 SCW 2156 relief given on special facts, exercising power under Article 142 is not a precedent. 9. Sections 4 and 5 of the Cr. PC. reads as follows: Section 4. Trial of offences under the Indian Penal code and other laws: 1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. 2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 Savings:- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. A reading of Sections 4 and 5 of Cr. P.C. shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actment Section 147 was enacted by the Parliament. 10. Whether offences under N.I. Act committed prior to the insertion of Section 147 of N.I. Act were compoundable? Since bar under Section 320 of Cr. P.C. is lifted by insertion of Section 147 with respect of offences under the N.I. Act, it can be considered applicable to all pending proceedings. No new penalties are prescribed. In such cases pending cases are governed by the amended provisions. None of the rights of the parties are taken away but it confers additional rights to the parties and no prejudice is caused. The provisions incorporated by amendment has to be construed from the points of view of the mischief the new provisions seeks to remedy and the manner in which it is to be remedied See Ajith Kumar v. State 1961(2) Cri. L.J. 617 (Calcutta F.B.). But if right of compounding is taken away it may be possible to argue that since prejudice is caused, amendment shall be prospective. We are not considering that aspect here. But here no prejudice is caused by making Section 147 applicable to pending proceedings. It will not affect concluded matters but all pending cases under Section 138 can be compounded especially conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002. It is a beneficial provision and it is applicable for all cases pending trial, appeal and revision even if the offence is committed before the amendment. But is not applicable to concluded matters. 11. What is the effect of non obstante clause in Section 147 of N.I. Act and whether the court has to ignore entire Cr. P.C. including Section 320 while dealing with a compounding petition? It is true that Section 147 of N.I. Act starts with the non obstante clause not withstanding anything contained in the Code of Criminal Procedure 1973 . Such clauses are added with a view to give an overriding clause in case of conflict, the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the Section See South India Corporation (P) Ltd. v. Secretary. Board of Revenue. Trivandrum and Anr. [1964]4SCR280 . A non obstante clause may be used as a legislative device to modify the ambit of the provision of law mentioned in the non obstante clause or to override it in specified circumstances see Panalal Bansilal Patil and Ors. v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Sections 320(1) and (2), offences under N.I. A also can be compounded. But the non obstante clause mentioned in the beginning of the Section will not completely exclude application of Cr.P.C. to offences under the N.I. Act. In this context, we refer to the decision of the Supreme Court in Paranakandiyal Eravath Kanapravan Kalliani Amma (Smt) and Ors. v. K. Devi and Ors. AIR1996SC1963 wherein meaning of such clause are explained as follows: It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provision indicated in the non obstante clause will not be an impediment for the operation of the enactment. 12. If Section 320 is completely not applicable, there is no procedure prescribed for acceptance of the compounding by the Court resulting in acquittal of the accused at the stage of trial or appeal or in revision either under Cr. P.C. or N.I. Act. If Section 320 is not applicable and entire Section 320 is excluded even if parties have compounded, it will not have the effect of acquittal as provided under Section 320 and if he is convicted and sentenced, he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence under the N.I. Act can be compounded in par with the offences mentioned in Table 1 in Section 320(1) without permission from the court. Hence to that effect we fully endorse the above view of the learned Single judge in Sabu George's case (supra). 14. Can the offence under N.I. Act or offence punishable under Table I of Section 320 be compounded after conviction, when the appeal or revision is pending? We have already seen that offence under the N.I. Act comes in par with offences mentioned in the Table I of Section 320(1). Such offence is compoundable when the trial is pending, without permission from court. Therefore if such offences are compounded by the parties, the trial court is bound to accept the compounding. The trial court need only look into whether a genuine compromise was entered into and the compounding petition is filed accordingly. The resultant consequence is the effect of an acquittal of the accused. Sub-section (8) of 320 provides that the compounding of the offence under this section shall have the effect of an acquittal of the accused. It is not equivalent to discharge but acquittal and for the same offence, he cannot be against prosecuted in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n conviction and sentence against the accused have become final. Admittedly the conviction and sentence entered against the accused have become final in view of the dismissal of . As the conviction and sentence entered against the accused have become final, this Court cannot have any jurisdiction to compound the offences even if both parties to the dispute agree for such a course of action. 5. Compounding of offences can be done when the case is pending before the trial Court or the appellate Court or the revisional Court. Section 320(5) provides that when an accused has been convicted and an appeal is pending no composition of the offence shall be allowed without the leave of the Court before which the appeal is to be heard. Section 320(6) enables compounding of offences even during the revisional stage. Finally it was held as follows: Though compounding of offences can be done during the pendency of the revision before the High Court, it cannot be done at any time after the revision petition has been disposed of. Section 320(6) states that the High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned its judgment or final Order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error and that this section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the Court of competent jurisdiction. Once the order of conviction is confirmed in revision, the revisional court cannot review or alter the conviction in view of the specific bar under Section 362. The above statutory bar of review cannot be over-reached by filing clarification petition, modification petition or a petition under Section 482 or by resorting to any other innovative methods. Mandate of Section 362 has to be obeyed in letter and spirit. 17. Can the High Court reverse, alter or modify the conviction which became final by its own order passed in a revision petition, by using power under Section 482 of the Cr.P.C., which ultimately may amount to cancellation of conviction and sentence taking note of subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: The learned judge in Sabu George's case (supra) relied on an observation of the Supreme Court in Mostt. Simrikhia v. Smt. Dolley Mukherjee alias Chhabi Mukherjee and Anr. for holding that Section 482 can be used to review the effect of an order if there is change in circumstances. Facts of that case are described in paragraph 1 of the above Apex Court judgment is as follows: In a case instituted on a private complaint by the appellant for offences under Sections 452 and 323, IPC, the Judicial Magistrate First Class, Patna, in exercise of power under Section 192(2), Cr.P.C. transferred the case for enquiry under Section 202 of the Code. The Court of the Second Class Magistrate, after examining witnesses, by order dated 22-3-1985 issued process to the two accused the respondents herein. The order of the Magistrate issuing process was challenged by the respondents under Section 482 before the High Court. The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cognizance of the offence and the subsequent proceedings were, therefore, illegal. The High Court, by its order dated 20-8-1988, dismissed the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage. With the above findings appeal was allowed setting aside the order of the High Court. With great respect, we are of the opinion that a sentence in a judgment cannot be taken out from the context and used for laying down the preposition that if there is change in circumstances, by using inherent powers under Section 482 express bar under Section 362 can be got over. Learned Single Judge in Sabu George's case (supra) was of the' opinion that the above observations of the Supreme Court enable the High Court in effect, to set aside the conviction which is confirmed by its own order, taking note of subsequent compounding of the offence and it paragraph 26 it was observed as follows: 26. In the instant cases, when the revision petition was disposed of by this Court, this circumstance - that the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding Therefore, an application for compounding offence filed after the conviction has become final, cannot be entertained. Once the appeal or revision has been finally disposed of by the High Court, there remains nothing pending. Further, if such an application is allowed, it will result in setting aside the judgment of the High Court. It cannot be done in view of express bar under Section 362, which permits correction in the judgment in respect of clerical or arithmetical errors only. In Moti Lal v. State of M.P. 1994CriLJ2184 , Apex Court considered a similar matter. In that case 15 accused were punished for various offences under Sections 302, 325 etc. read with Section 149 of IPC. Three persons were convicted. In appeal High Court acquitted two persons and remaining accused were convicted under Section 304 Part I of IPC without the aid of Section 149 or Section 34. Later an application was filed before the High Court under Section 482, Cr.P.C. with the prayer that the conviction under Section 304 Part I, I.P.C. was patently wrong since the injury said to have been caused by the appellant was not serious and necessarily not fatal. The High Court exercising jurisdiction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring the advocate and hence in the interest of justice and to avoid multiplicity of the case, matter shall be reconsidered in a petition under Section 482. The High Court rejected the appeal in view of special bar under Section 362. Apex Court agreed with the above view as order in criminal revision cannot be reviewed or altered in a petition under Section 482 though it will have avoided multiplicity of proceedings. Apex Court held as follows: In State of Orissa v. Ram Chander Agarwala 1979CriLJ33 it was noted in para 20 as follows: This decisiqn instead of supporting the respondent clearly lays down, following U.J.S. Chopra v. State of Bombay 1955CriLJ1410 that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction.... The provisions of Section 561-A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code. In Hari Singh Mann v. Harbhajan Sinch Bajwa (2001) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in revision cannot be modified by a proceedings under Section 482. 20. It was submitted that in Sabu George's case, there is another serious error in so far court imposed fine even after the composition was accepted and provided also for default sentence if fine is not paid. We have already quoted paragraphs 31 to 33 of the above decision in paragraph 3 of this order. We have already seen that in view of Section 320(8), effect of compounding is that of the acquittal, of the accused. Once the compounding is accepted by the court, court cannot impose any sentence. Imposition of fine and ordering imprisonment in default of payment of fine, after acquitting the accused is foreign to criminal law. After acquitting a person he cannot be sentenced either with imprisonment or fine. That is not possible. Inherent jurisdiction cannot be used for sentencing a person by imposing a fine even after acquitting him, bye passing the statutory provisions. Justice can be administered only according to law. Imposition of fine is different from imposition of cost or compensation. We are of the opinion that, once the compounding is permitted, it will have the effect of an acquittal and not fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
