Surendra Nath Mohanty & Anr Vs. State of Orrissa
EmailAppeal: Criminal Appeal No. 497 -98 of 1999
(@ Special Leave Petition (Criminal ) No 196-197/ 1999)
(From the judgment and order dated 5.9. 1997 of the Orissa High Court in Crl. R. No. 436 of 1994)
4.5.1999
(@ Special Leave Petition (Criminal ) No 196-197/ 1999)
(From the judgment and order dated 5.9. 1997 of the Orissa High Court in Crl. R. No. 436 of 1994)
4.5.1999
Petitioner: Surendra Nath Mohanty & Anr
Respondent: State of Orrissa
Apeal: Criminal Appeal No. 497 -98 of 1999
(@ Special Leave Petition (Criminal ) No 196-197/ 1999)
(From the judgment and order dated 5.9. 1997 of the Orissa High Court in Crl. R. No. 436 of 1994)
4.5.1999
(@ Special Leave Petition (Criminal ) No 196-197/ 1999)
(From the judgment and order dated 5.9. 1997 of the Orissa High Court in Crl. R. No. 436 of 1994)
4.5.1999
Judges: K.T. Thomas, M.B.Shah & D.P. Mohapatra,JJ.
Date of Judgment: Apr 05, 1999
Appearances:
Vijay Hansaria, Sunil Jain, Adv for Jain Hansariya & co for the appellants. Jana Kalyan Das Adv. for the respondent.
Head Note:
CRIMINAL LAW
Criminal Procedure Code, 1973
Sec. 320 – Compounding of offence – Conviction under Sec. 326,325,324,323 with 34 IPC – Application for compounding offence rejected by High Court – Conviction u/s 307 IPC set-aside – If cogent ground for allowing composition . Held that offence u/s 326 IPC was not compoundable and High Court has rightly rejected the application . Ram Pujan (1973 (2) SCC 456) and Mahesh Chand’s case ( JT 1998 (1) SC 618) held not according to law.
Criminal Procedure Code, 1973
Sec. 320 – Compounding of offence – Conviction under Sec. 326,325,324,323 with 34 IPC – Application for compounding offence rejected by High Court – Conviction u/s 307 IPC set-aside – If cogent ground for allowing composition . Held that offence u/s 326 IPC was not compoundable and High Court has rightly rejected the application . Ram Pujan (1973 (2) SCC 456) and Mahesh Chand’s case ( JT 1998 (1) SC 618) held not according to law.
Held:
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 offence 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.
(para 5)
(para 5)
Cases Reffered:
1. Ram Lal and Anr. v. State of J&K reported in JT 1999 (1) SC 147
2. Mahesh Chand and Anr. v. State of Rajasthan JT 1988 (1) SC 618
3. Y.Suresh Babu v. State of A.P. and Anr. 1987 (2) JT 361
4. Ram Pujan and Others v. State of Uttar Pradesh 1973 (2) SCC 456
JUDGEMENT:
SHAH, J.
1. Leave granted
2. These appeals are filed against the judgement 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 where by 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 & 323 read with Section 34,I.P.C. 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. The 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 the conclusion that the intention of the accused was to kill the injured and, therefore it would be hazardous to uphold their conviction under Section 326,325,324 & 323 read with Section 34, I.P.C. and having regard to the facts and circumstances of the case and the affidavit of the witness produced on record, the Court imposed sentence of six month’s R.I. and fine for Rs 1000/- 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 offence. Against that order, these appeal 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 decision of this court in Ram Pujan and Others v. State of Uttar Pradesh 1973 (2) SCC 456 and Mahesh Chand and Anr. v. State of Rajasthan JT 1988 (1) SC 618. 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 Judgement of this Court in Ram Lal and Anr. v. State of J&K reported in JT 1999 (1) SC 147 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 offence 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. and Anr. 1987 (2) JT 361 and held as under :-
“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 trail 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. and Mahesh Chand v. State of Rajasthan (Supra) was not in accordance with law. However, considering the facts that parties have settled their disputes 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 upon 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 Section 34 IPC. We reduce the sentence as indicated above and direct that in default of payment of fine, the appellants concerned shall undergo simple imprisonment for a further period of three months. We shall 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.
1. Leave granted
2. These appeals are filed against the judgement 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 where by 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 & 323 read with Section 34,I.P.C. 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. The 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 the conclusion that the intention of the accused was to kill the injured and, therefore it would be hazardous to uphold their conviction under Section 326,325,324 & 323 read with Section 34, I.P.C. and having regard to the facts and circumstances of the case and the affidavit of the witness produced on record, the Court imposed sentence of six month’s R.I. and fine for Rs 1000/- 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 offence. Against that order, these appeal 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 decision of this court in Ram Pujan and Others v. State of Uttar Pradesh 1973 (2) SCC 456 and Mahesh Chand and Anr. v. State of Rajasthan JT 1988 (1) SC 618. 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 Judgement of this Court in Ram Lal and Anr. v. State of J&K reported in JT 1999 (1) SC 147 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 offence 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. and Anr. 1987 (2) JT 361 and held as under :-
“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 trail 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. and Mahesh Chand v. State of Rajasthan (Supra) was not in accordance with law. However, considering the facts that parties have settled their disputes 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 upon 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 Section 34 IPC. We reduce the sentence as indicated above and direct that in default of payment of fine, the appellants concerned shall undergo simple imprisonment for a further period of three months. We shall 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.
