TMI Blog2007 (2) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... f importance arise for consideration in these petitions. As the questions raised were reckoned by me as important and vital, I had sought the assistance, which I get in good measure too, of Shri.S.Sreekumar, Standing Counsel for the C.B.I. and Shri.T.G. Rajendran, Advocate. All counsel have been heard in detail. 3. To the vital facts first. Crl.M.C. 259 of 2007 and Crl.M.A. 8626 of 2006 in Crl.R.P.No. 7 of 2004 are both filed by some accused in a prosecution under Section 138 of the N.I. Act. The verdict of guilty, conviction and sentence on him have become final and the said petitioner now faces a sentence of S.I. for a period of six months and to pay a fine of Rs.1,60,000/- and in default to undergo S.I. for a period of four months. If the fine is realised, an amount of Rs.1,58,000/- has been directed to be paid to the complainant as compensation under Section 357(1) Cr.P.C. Crl.M.A. 8626 of 2006 was filed initially by the petitioner with a prayer that the joint application for composition filed by the petitioner/accused and the respondent/complainant duly counter signed by their respective counsel may be accepted. It was later, by way of abundant caution, that Crl.M.C. 259 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Court, compound such offence. (b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court, compound such offence. (5) When the accused has been committed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces 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. 5. Saving. - 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. 10. When no special procedure is prescribed under any special law, the procedure prescribed under the Cr.P.C. has to be followed for investigation, enquiry, trial or otherwise dealing with such situations. If there is a specific provision contra in any such special law the provisions of the Code shall not apply. About the procedure for composi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses and that may be prior to execution of the sentence or during execution of sentence. 13. The contention that an offence can be compounded under Section 320(1) Cr.P.C. only when the matter is pending before a court has been considered by me. But that does not appear to me to be the correct law. The decisions in Mrs. F.M. Torpey v. King Emperor (AIR 1927 Allahabad 375) and Kumaraswami Chetty v. Kuppuswami Chetty (1918) 41 Mad 685) clearly show that initiation of proceedings/prosecution is not a condition precedent for composition of the offence. In short, composition can be effected even prior to commencement of prosecution. In Mrs. Torpey (supra) the question is dealt with by the learned Judge in the following words, after referring to the decision in Kumaraswami Chetty (supra). The lower appellate Court refused to accept the compromise on the ground that the complaint was filed subsequent to the alleged compromise and not prior thereto. An offence under S.341 may be compounded without the permission of the Court under S.345(1) of the Code of Criminal Procedure. It, therefore, does not seem to be necessary that a composition should be arrived at after a complaint has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (6) are applicable to an offence falling within the sweep of Section 320(1) also and the purpose can only be to apprise the court of such composition. There is nothing in Section 320, which makes a post-revision composition impermissible if the offence would fall within Section 320(1) Cr.P.C. Section 320(5) and (6) speak of the event of conviction and pendency of an appeal or revision and they do not deal with the liberty or option of the parties to compound the offence after trial/appeal/revision. By the same reasons given in Mrs. Torpey, it must hence be possible for the parties to enter into a composition even after the verdict of guilty, conviction and sentence have become final and no proceedings are pending before any Court. Going by the plain language of Section 320(1), no time limit appears to have been fixed before which the composition must necessarily take place, though for composition during the pendency of appellate or revisional proceedings leave of the Court must be sought under Section 320(5) and 320(6). 15. But then, such a conclusion also creates further problems. If the verdict of guilty, conviction and sentence have become final, which Court would accept th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voked and exercised prior to such final disposal. 16. If the trial, appellate and revisional court cannot do the same and the composition is legally permissible, the question necessarily will have to be considered as to which court can and in what manner the accused, the offence against whom has been compounded in accordance with law, can be saved from the trauma of suffering the sentence. 17. It is here that the next question arises as to whether powers under Section 482 Cr.P.C. can be invoked by this Court to give effect to such a composition which has been legally arrived at, but for the acceptance of which, there is no specific stipulation of law. Section 482 Cr.P.C. reads as follows:- S. 482. Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 18. Precedents galore to indicate the sweep, width and amplitude of the inherent powers of this Court under Section 482 Cr.P.C. Section 482 does not really confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that in the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and S.320 of the Code does not limit or affect the powers under S. 482 of the Code. (emphasis supplied) These observations were made while considering the question of quashing an F.I.R. But there is nothing to show that the principle will not apply when the question of quashing a sentence which has become final is considered when the offence is legally compounded. 20. A Full Bench of this Court had looked at the sweep of the powers under Section 482 Cr.P.C., though in a different context, and the rationale underlying in Section 482 Cr.P.C. is expressed by the Full Bench in the following words in Moosa v. Sub Inspector of Police (2006 (1) KLT 552): No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. In exercise of the powers court would be justified to quash any proceedings if it finds that initiation or continuance of it amounts to abuse of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot go against the mandate of Section 362. The decision in Smt. Sooraj Devi v. Pyare Lal anr. (1981) 1 SCC 500) clearly holds that after the judgment is pronounced, on the same facts powers under Section 482 Cr.P.C. cannot be invoked in view of the specific bar under Section 362. This position has been held repeatedly. In Hari Singh Mann v. Harbhajan Singh Bajwa (AIR 2001 SC 43), it was held by the Supreme Court as follows in paragraphs 8 and 9: 8. xxx xxx The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the Court. 9. There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such power cannot be exercised with the aid or under the cloak of Section 482 of the Code. In State of Kerala v. M .M. Manikantan Nair (AIR 2001 SC 2145) the Supreme Court held so in paragraph 6: 6. The Code of Criminal Procedure does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, when the revision petition was disposed of by this Court, this circumstance - that the parties settled the dispute and the complainant compounded the offence - was not there at all. It is a subsequent change in circumstance. The decision in Mostt. Simrikhia (supra) squarely applies. That was a case where an earlier application under Section 482 Cr.P.C. was dismissed, but still the Supreme Court held that a change in circumstances is sufficient to justify the invocation of the powers afresh under Section 482 Cr.P.C. notwithstanding the bar under Section 362 Cr.P.C. In the instant case, the powers under Section 482 Cr.P.C. have not been sought to be invoked earlier. Only the revisional powers were exercised. That is all the more the reason why under the changed circumstances the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. can be invoked. In the light of the dictum in Mostt. Simrikhia earlier decisions rendered and subsequent decisions, which do not refer to the said decision specifically and in which the opinion is expressed that the powers under Section 482 Cr.P.C. cannot be invoked after disposal of the revision in view of the bar under Section 362, cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led their disputes amicably. Complainants have voluntarily compounded the offence. There is no specific bar against such composition after the finality of the conviction and sentence. The offence is only one under Section 138 of the N.I. Act. If the powers under Section 482 Cr.P.C. were not invoked by this Court, the petitioners will have to necessarily undergo the dreadful ordeal of punitive incarceration in prison. By being humane and considerate towards such an accused who has made amends and reversed his culpable conduct, the majesty of the law will not suffer at all. Quality of mercy is the most important dimension of justice. I hold that these are fit cases to invoke the powers under Section 482 Cr.P.C. 30. I may hasten to observe that I do not intend to lay down a rule of the thumb that there can be post revision composition as a matter of routine. Facts in each case will have to be considered carefully. That the petitioners shall have to undergo punitive substantive sentence of imprisonment in prison in these cases, under Section 138 of the N.I. Act does perhaps persuade me in the final analysis to invoke such powers. 31. In both these cases, I find that an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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