Bombay High Court Smt. Neeta Sanjay Tadage-vs-Smt. Vimal Sadashiv Tadage And on 17 April, 1997
Equivalent citations:1997 CriLJ 3263, 1997 (3) MhLj 884
Bench: J Patel
1. By this petition under Art. 227 of the Constitution of India, the petitioner Smt. Neeta Sanjay Tadage, challenges the order dated 3-3-1994 passed by the learned Judicial Magistrate. First Class, Court No. 5, Thane, below Exh. 60, allowing composition of offences between the parties registered under Section 498-A r/w 34 of the Indian Penal Code, which is annexed as Exh. F to the petition.
2. The petitioner married Sanjay, son of respondent No. 1 and brother of respondent No. 2 at Dhulia. After their marriage, she started residing at Thane with her husband, who is gainfully employed in the Police Department as Police Constable. Soon after the marriage, the petitioner realised that the respondents No. 1 and 2 were out to harass her and they started treating her with cruelty by putting her under restrains and even subjected her to starvation. She was not allowed even to write any letter to her parents at Dhulia without being censured by them. It is also alleged that the respondents even went to the extreme end of levelling false insinuation about her character and in all these, the petitioner’s husband did not take any initiative to improve the situation, but on the other hand, acted in concert. The petitioner tolerated all this with patience due to the wishes of her parents, who desired that there should be no disruption of the family tie between the petitioner and her husband, but inspite of all this, there was no semblance of peace and harmony and the respondents continued to ill-treat the petitioner. On or about 2-1-1994, the respondent attempt to liquidate the petitioner by holding her inside the house and poured kerosene on her person, but before they could set her on fire, the Petitioner could free herself from their clutches and entered the bath room and closed it from inside. The petitioner’s husband who was present in the house, watching T.V. realising danger as the petitioner was shouting for help, went to the bath room and took her out, and by that time, the petitioner was in an unconscious state due to shock. She was also pregnant at that time. The petitioner’s husband then took her to a private Nursing Home, where she was medically treated and saved. It appears that the Doctor Incharge of the Nursing Home informed the Police of Vartak Nagar Police Station and the statement of the petitioner came to be recorded by the Police Sub-Inspector at the hospital itself and on the basis thereof, an offence came to be registered under Section 498 r/w 34 of the Indian Penal Code. It is the case of petitioner that the police tried to give a colour that on account of the harassment and ill-treatment meted out to the petitioner, she attempted to commit suicide and as the petitioner, a married woman, was subjected to cruelty by the relatives of the husband, the cruelty being of such a nature as was likely to drive the woman to commit suicide, an offence under Section 498-A read with Section 34 of the Indian Penal Code was registered at Vartak Nagar Police Station, Thane, on the same day at C.R. No. 12/94, against the respondents. Charge sheet came to be filed against both the respondents on or about 10-2-1994 in the Court of the Judicial Magistrate, First Class, Court No. 5, at Thane, for offence under Section 498-A r/w Section 34 Indian Penal Code, which was the subject-matter of Criminal Case No. 67 of 1994. It appears that thereafter the petitioner’s husband shifted to Vasai as he was attached to the said Police Station and the Petitioner started residing with him. After the incident, the husband of the petitioner called her parents from Dhule who came to Thane on 3-1-1994, and sent the petitioner with them to Dhule and as the petitioner was carrying (pregnant at that time), she delivered a female child on 26-6-1994 at the Hospital of Dr. S. N. Deshpande. After delivery, the Doctor advised her not to undergo journey for some time on account of her delicate health. It is the case of the petitioner that after she went back to Dhule with her parents, the petitioner on some occasion was brought to Thane and also at Vasai, as the respondents did not want to loose any control of the situation, particularly when the criminal case was pending in the Magistrate’s Court. During this period, the petitioner’s husband Sanjay and the respondents used to pressurize her to withdraw the complaint and for which they adopted all possible modes, though the petitioner was not willing to succumb to their pressure and false promises, and was insisting that let the law take its own course and at least, she would not like to take any hastly action for a couple of years during which she can observe the conduct of the respondent and would feel safety for her life as against the respondents and her husband who were making indecent haste and even pressurized her to sign documents purporting to be an application for compounding the offence. It is the case of the petitioner that the respondents and her husband were successful in obtaining her signature on a couple of documents, without making her understand its contents and implication and thereafter she was made to go back to her house at Dhule. On 2-3-1995, the respondents and husband of the petitioner filed two documents in the Court of the learned Magistrate one being a pursis and another an application for permission to compound the offence without letting the petitioner understand the implication and even to give her say and thereafter she was made to go back to home. It is only when the petitioner subsequently took inspection, she found that the documents contained prayer for compounding the offences alleging that harmony has been restored in the family and that the petitioner does not want to pursue the complaint, which event occurred only after the petitioner received the registered notice from the husband dated 20-7-1994.
3. The learned advocate appearing for the petitioner raised a question of law as to whether the Court has the power and jurisdiction to compound an offence under Section 498A of the Indian Penal Code which is noncompoundable, even with the permission of the Court. It was contended that the very purpose of inducting Section 498-A was to afford full protection of law to the women like the petitioner against her husband and his relatives and that by making the offence non-compoundable, the Legislature intended that in such cases, the law should take its own course and the process should not be interfered with and it should culminate in the final order on the merits of the case. He further submitted that the learned Magistrate has relied on two judgments rendered by this Court, viz. the case of Suresh Nathmal Rathi v. State of Maharashtra, reported in 1991 Mah LJ 1106 : (1992 Cri LJ 2106), and Radhabai Ramesh Malegave v. State of Maharashtra, . He submitted that these two decisions
relied upon by the learned Magistrate does not lay down the law that the offence under Section 498-A, IPC is compoundable and submitted that in Rathi’s case, the wife came to live with her husband during the pendency of the case and was enjoying the marital life and so far as Radhabai’s case was concerned, a similar situation also existed there and the spouses were leading a happy matrimonial life for quite sometime even after filing the charge sheet and in those circumstances, the High Court directed compounding of offence only on the basis that the bickerings were wiped out and the spouses were leading a happy married life all throughout, and that compounding of offence under Section 498-A, I.P.C. would further guarantee happy married life in future. Whereas in the present case immediately after the petitioner was sent back on the pretext of delivery, she was called back and pressurized and deceived to sign certain documents, which she has later on realised was application for permission to compound offence under Section 498-A, I.P.C. As soon as the purpose was achieved, i.e. the learned Magistrate passed the impugned order, the husband of the petitioner issued a notice to her on 20-7-1994 asking the petitioner to give her consent for divorce and so it can very well be said that the respondents have betrayed the petitioner and criminal case was compounded only with an object to get an acquittal in their favour with no desire to continue matrimonial relation and as such the ratio down in the two cases relied upon by the learned Magistrate for allowing composition became totally non-existent. It is therefore, contended by the petitioner that the impugned order should be set aside not only on the fact of the case but also in law as composition of a non-compoundable case is not permitted either in law or on facts. It is contended by the petitioner that the case registered against the respondents is only under Section 498-A r/w 34, I.P.C. on the ground that the petitioner allegedly attempted to commit suicide whereas in fact this is a case where the respondents have made attempted to commit murder of the petitioner, which according to her as been wrongly investigated by the Police because her husband is a Police Constable and in these circumstances, she prays that the impugned order be set aside and the Criminal Case bearing No. 67 of 1994 be restored on the file of the learned Magistrate and the respondent Nos. 1 and 2 who are accused, may be tried in accordance with the law for offence under Sections 307, 498-A r/w 34 of the Indian Penal Code.
4. Mr. Prakash Naik, learned counsel appearing for respondents Nos. 1 and 2 submitted that once the offence has been compounded by the learned Magistrate, and rightly so, it results in acquittal of the respondents/accused. He submitted that even in cases, which are non-compoundable, there is trend to compound the offence, which is permissible under the law, if so directed by the Court. He submitted that the learned Magistrate has rightly relied upon the two decisions rendered by this Court in the case of Suresh Nathmal Rathi, (1992 Cri LJ 2106) and Radhabai w/o. Ramesh Malegave, (1992 (1) Bom CR 459) (cited supra). He submitted that there is no error on the part of the learned Magistrate in compounding the offence and also relied upon the ruling of the Supreme Court in the case of Mahesh Chand v. State of Rajasthan, .
5. Mrs. Kantharia, appearing on behalf of the State submitted that the learned A.P.P. who appeared before the trial Court had objected for the compounding of the offence by giving his say on the application Exh. 16 filed by the parties saying that “offence Section 498-A I.P.C. is not compoundable one and hence objection by the prosecution”. The learned trial Court did not consider this and proceeded to pass the impugned order relying on two authorities. The learned A.P.P. further submitted that sub-section (9) of Section 320. Cr.P.C. is very clear that no offence shall be compunded except as provided by the said section and in the table provided under Section 320, Cr.P.C the offence under Section 498-A, I.P.C. does not find place, and is not compoundable even with the permission of the Court. She further submitted that the two authorities which are relied upon by the learned trial Court do not delegate powers to the Judicial Magistrate, First Class to compound the offence under Section 498-A of the I.P.C. and submits that the impugned order has to be quashed and set aside.
6. Section 320 of the Cr.P.C. provides for compounding of offence and it reads as under :-
“320.Compounding of offences.
(1) The offences punishable under the section of the Indian Penal Code specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table.
(2) The offences punishable under the section of the Indian Penal Code specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table.
(3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence), may be compounded in like manner.
(4) (a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years, or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission 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 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 actquittal of the accused with whom the offence has been compounded.
(9) No offence shall be compounded except as provided by this Section.”
A plain reading of Section 320, Cr.P.C. goes to show the compounding is in the nature of bilateral agreement between the accused and the person injured who consent to abstain from prosecution in consideration of some gratification or inducement, subject to the following conditions :
(i) the offence is compoundable according to the present section or is an abetment of or attempt to commit such offence.
(ii) the accused has no previous conviction for which he would be liable to enhanced punishment or punishment of a different kind.
(iii) the court has given its permission in cases where sub-sections (2), (4), (5), (6) are attracted.
Under Section 320 sub-section (8) of Cr.P.C. the effect of compounding is that the accused with whom the offence has been compounded, shall be acquitted. The general rule is that where a person is charged with an offence, however trivial it may be, the law must take its course and the charge inquired into, resulting in either conviction or acquittal. Any exception to this general rule can only be provided by law. Such an exceptions is Section 320, but its applicability is limited to those offences which are enumerated under sub-sections. (1) and (2). But it will not extend to any other offence in the I.P.C. or any other enactment, in the absence of express statutory provision to that effect. The reason is that acquittal under Section 320(8) saves the accused from any stigma attaching to his character as an accused, by virtue of law, in the absence of such statutory provision, the accused cannot acquire such vindication of his character by mere payment of compensation to the person aggrieved. Sub-section (9) of Section 320 clearly provides that no offence shall be compounded except as provided by this section. In the table provided in sub-section (1) of Section 320 and sub-section (2) of Section 320, section 498-A of the I.P.C. does not find place and in these circumstances, the Court is not vested with any power or jurisdiction to compound offence under Section 498-A. There is no power vested in the Court to compound offences which are not provided udder Section 320 and as such even in the best of cases, the Court cannot use its discretion and any order passed by the Court for compounding of offence which is not provided under sub-sections (1) and (2) of Section 320 will be nothing but an illegality. Nothing much is required to be said in the matter and this alone is sufficient to set aside the impugned order. But this Court find that the learned Magistrate was misled by the two authorities cited before him by the learned Counsel appearing for the accused, viz the case of Suresh Nathmal Rathi, (1992 Cri LJ 2106) (Bombay) and Radhabai w/o Ramesh Malegave, (cited Supra). In the case of Suresh
Nathmal Rathi, the High Court itself proceeded to compound the offence and observed –
“I grant permission to enter into the composition and accept the same. Accordingly, I allow the petition in terms of the issue raised and acquit them to liberty.”
In the case of Radhabai, relying upon the case of Suresh Rathi, the Court passed an order that
“the writ petition therefore will have to be allowed and the learned Magistrate was directed to accord, necessary permission to compound the offence as prayed for by the parties at Exh. 52 in the case and set aside the impunged order refusing to compound the offence under Section 498 of I.P.C.”
I do not wish to examine the correctness of these two authorities, but in my humble opinion. I find that these two authorities cannot be considered as binding precedent as it dos not lay down any law on the subject, but the Court has considered these two cases in the peculiar facts and circumstances of those cases and found that the offence under Section 498-A of the I.P.C. can be permitted to be compounded keeping in mind the social object of promoting harmony amongst the estranged couples and to enable them to live a happy married life. These two authorities cannot be read as having made any statutory changes in Section 320 of Cr.P.C. by incorporating Section 498-A into the table of offences which are compoundable and the decisions rendered are in ignorance of Section 320(9), Cr.P.C. and to that extent these two authorities relied upon by the trial Court can be said to be per incuriam. Both these cases decided by the High Court are in exercise of its power under Article 227 of the Constitution of India. In my humable opinion, Article 226 or Article 227 of the Constitution of India dose not confer any legislative power to the High Court. Article 226 of the Constitution of India reads as under :-
“226. Power of High Court to issue certain writs. –
(1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantto and certiorari, or any of them, for the enforcement of any of the rights conferred in Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government authority or person may also be exercises by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner is made on, or in any proceedings relating, to a petition under clause (1), without –
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard.
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.”
Article 226 empowers the High Court to issue writs, direction or orders in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, firstly for the enforcement of any of the rights conferred by Part III of the Constitution of India, and secondly, for any other purposes. Under first part, a writ may be issued under the Article only after a decision that the aggrieved party has a fundamental right and that it has been infringed. Similarly, under the second part, it may be issued only after a finding that the aggrieved party has a legal right which entitles him to any of the aforesaid writs and that such right has been infringed. Obviously the aforesaid two authorities relied upon by the learned Magistrate are not decided by the High Court in its exercise of power under Article 226 of the Constitution as no such writ was sought by the parties. Even otherwise ‘any other purpose’ would mean ‘enforcement of any legal rights and performance of any legal duty’ as settled by catena of decisions. But this does not vest the High Court with jurisdiction to direct compounding of an offence which is otherwise not provided by the statute.
7. Article 227 of the Constitution provides as under :-
“227. Power of superintendence over all Courts by the High Court. –
(1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provision, the High Court may –
(a) call for returns from such Courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and
(c) prescribe forms in such books, entries, and accounts shall be kept by the officers of any such Courts.
(3) The High Court may also settle tables of fees to the allowed to the Sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein;
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces.”
It is now settled that the power of ‘superintendence’ conferred upon the High Court by Article 227 is not confined to administrative superintendence only, but includes the power of judicial revision also even where no appeal or revision lies to the High Court under the ordinary law. The two authorities i.e. Suresh Nathmal Rathi’s case (1992 Cri LJ 2106) (Bombay) and Radhabai’s case
(cited supra) decided by the High Court are purported to be in exercise of its jurisdiction under Article 227. Various decisions of the Supreme Court of India and High Courts have interpreted that the High Court in exercise of its jurisdiction can interfere under Article 227 in cases of (a) erroneous assumption or excess of jurisdiction, (b) refusal to exercise jurisdiction, (c) error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction, (d) violation of the principles of natural justice, (e) arbitrary or capricious exercise of authority or discretion, and (f) arriving at a finding which is perverse or based on no material, by the Courts or tribunal within its jurisdiction. I do not find that the learned Magistrate in the two authorities cited supra by refusing to compound the offences under Section 498A of I.P.C. has committed error of such illegality which would invite exercise of jurisdiction under Article 227 of the Constitution of India.
8. Now let us examine whether the Court can direct compounding of offence under Section 498A of I.P.C. in exercise of its inherent power under Section 482 of Cr.P.C. Section 482 reads as under :
“482. Saying 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.”
The inherent powers vested in the High Court under Section 482 of Cr.P.C. is an extraordinary power to secure the ends of justice and the exercise of inherent powers cannot be inconsistent with any express or specific provisions of law. The plain reading of Section 482, Cr.P.C. would show that though the inherent powers are unlimited it is for making such orders as may be necessary to give effect to any order under this Court or to abuse the process of the Court or otherwise secure the ends of justice. In the case of Madhu Limaye v. State of Maharashtra, , the Supreme Court has
carved out the following principles in relation to the exercise of the inherent powers of the High Court :
“(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.”
It is crystal clear that in exercise of its inherent power under Section 482, Cr.P.C., the High Court will not pass any orders against the express bar of law and provided in other provisions of law. Sub-section (9) of Section 320 of the Cr.P.C. clearly states that no offence shall be compounded except as provided by this section, and therefore, even in exercise of its inherent powers, the High Court cannot direct or compound the offence under Section 498-A of I.P.C. For these reasons, I find that the cases of Suresh Rathi, (1992 Cri LJ 2106) (Bombay) and Radhabai, (cited supra) are
per-incurium and beyond the preview of the doctrine of stare decisis and that the said cases do not settle any ratio of a binding nature. The learned Magistrate has based the impugned order solely on these two authorities by allowing compounding of offence between the parties; which is nothing but an illegality.
9. In the course of arguments it was pointed to this Court that in the case of Mahesh Chand v. State of Rajasthan, , the Hon’ble Supreme Court has granted permission to compound offence under Section 307, I.P.C.. It is a very short judgment and the Hon’ble Supreme Court has itself observed that offence under Section 307, I.P.C. is not compoundable in law, but taking into consideration and after examining the nature of the case and circumstances, under which the offence was committed the Hon’ble Supreme Court held that it would be proper that trial Court should permit the parties to compound offence, after giving an opportunity to the parties and after being satisfied with the compromise agreed upon. The case of Mahesh Chand is an exception and it is not the law laid down that offence which are not made compoundable under Section 320 of the I.P.C. can be compounded by the Court of first instance i.e. the trial Court as that would mean misreading of the judgment of the Hon’ble Supreme Court.
10. On the other hand, the Supreme Court has expressed and taken a consistent view that the offences which are not compoundable cannot be allowed to be compounded as can be seen from the case of Bishwabahan Das v. Gopen Chandra Hazaria and the case
of Ramesh Chandra, J. Thakur v. A. P. Jhaveri, . In the case of Bishwabahan Das (supra), the Supreme Court has observed as under (Para 11) :
“We are unable to accept the above reasoning. 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. If the effect of composition is to amount to an acquittal then it may be said that no stigma should attach to the character of the person, but unless that is expressly provided for, the mere rendering of compensation would not amount to the vindication of the character of the person charged with the offence.”
Similarly in the case of Ramesh Chandra, J. Thakur (supra) the Supreme Court has observed (Para 6) :
“In the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh, this Court mentioned the circumstances under which
an order of acquittal can be set aside in revision by the High Court and observed in this context :
“We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be; where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal, and in such a case it in obvious that it cannot be said that High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4).”
It would follow from the above that where an acquittal is based on the compounding of an offence and the compounding is invalid under the law, the acquittal would be liable to be set aside by the High Court in exercise of its revisional powers. As the acquittal of the appellant by the trial Court in the present case was based upon the compounding of an offence which was not compoundable, the High Court, in our view rightly set aside the acquittal of the appellant.”
“8. Mr. Bhandare has argued that even if the acquittal of the appellant for the offence under Section 13 of the Maharashtra Act could be set aside by the High Court on the ground that the said offence could not be legally compounded, the High Court should not have interfered with the acquittal in so far as it related to an offence under Section 420, Indian Penal Code. In this respect we find that an offence under Section 420, Indian Penal Code can be compounded only with the permission of the Court. No order granting such permission has been brought to our notice. Even if we were to assume that such permission was granted, as submitted by Mr. Bhandare, we do not know the precise language in which the order granting permission was couched. In the absence of the copy of that order, it is difficult to predicate as to whether the magistrate would have granted the permission to compound the offence under Section 420, Indian Penal Code if he was aware that the offence under Section 13 of the Maharashtra Act was not compoundable and the case in any event would have to be proceeded with so far as the latter offence was concerned. All the same it appears that the said permission was one indivisible permission for the offences under Section 420, India Penal Code and Section 13 of the Maharashtra Act. As no valid permission could be granted for the compounding of an offence under Section 13 of the Maharashtra Act, the permission would have to be held to be invalid in its entirety. It is not permissible in such an event to sever the permission into two parts and to uphold it so far as the offence under Section 420, India Penal Code is concerned and hold it to be invalid in respect of the offence under Section 13 of the Maharashtra Act.”
11. The Division Bench of the Bombay High Court in Sholapur Municipal Corporation v. Ramkrishna v. Relekar, ,
has considered this question and while interpreting Section 345 of Cr.P.C. (old) (new Section 320) has stated as under :
“5. The real question, therefore, is not whether the Commissioner has got the power to compound the particular offence under clause (b), but whether as contemplated by that clause there is any law for the time being in force under which the offence may be legally compounded. The only other law which in this behalf would be relevant is the Code of Criminal Procedure. Now, in order to determine whether an offence of the present nature viz. importation of the goods without the payment of octroi duty, can be legally compounded under the Code of Criminal Procedure, it is necessary to bear in mind the scheme of Section 345 of the Code. The scheme is that offences specified in sub-sections (1) and (2) can alone be compounded and that too by the persons who are specified in the sub-sections as being entitled to compound the offences. The additional limitation on the power of composition is that the offences specified in sub-section (2) of Section 345 can be compunded with the permission of the Court only. Under sub-section (7) of Section 345, no offence can be compounded except as provided by the section and, therefore, it is clear that the scheme of Section 345 is that offences which are not specified in any of the sub-sections of Section 345 cannot be compounded. The scheme of Section 345 is not all offences can be compunded except those which are specified. This aspect is important for the reason that, in view of the provisions contained in Section 345, an offence can be legally compounded under the Code only if the Code specifically provides that the offence can be compounded.”
12. The learned Counsel appearing for the Petitioner has also brought to the notice of this Court, a recent decision of the Andhra Pradesh High Court, in the case of Annamdevula Srinivasa Rao v. State of Andhra Pradesh, reported in 1995 Cri LJ 3964, where the learned single Judge of the Andhra Pradesh High Court was required to consider whether the High Court can give direction to compound offences which are otherwise non-compoundable i.e., offences under Section 138 of the Negotiable Instrument Act, Sections 494, 498A, 307 and 452 of the Indian Penal Code and formulated a question of law as under :-
“Can this Court give directions to the subordinate Criminal Courts to permit compounding of offences which are otherwise non-compoundable under Section 482 Cr.P.C. ?”
After taking into consideration various authorities of the Supreme Court, and High Courts in the country, the learned Judge held that the High Court has no power and jurisdiction to direct subordinate Criminal Court to permit the parties to compound offences which are otherwise non-compoundable. I fully agree with the view taken by the learned Judge of the Andhra Pradesh High Court in the matter.
13. In the facts and circumstances of the present case, I find that it was not proper on the part of the learned Magistrate to have passed the impunged order on the application of the parties, which is Exh. 16, under which he permitted the parties to compound the offence under Section 498A read with Section 34 of the I.P.C. The manner in which the complainant was misled into entering the compromise as disclosed by her would go to show as to how husband and his relatives can be fool the victim and after achieving their object throw her out of the matrimonial home. The Petitioner on the other hand has gone one step further in making allegations that there was an attempt made on her life by the Respondents/Accused whereas in the charge-sheet of the case, an attempt to commit suicide has been made out. If what has been contended by the Petitioner before this Court is true, then this is a case which is not only makes out an offence under Section 498-A of the I.P.C. but under Section 307, I.P.C. as well, I do not want to express anything on merits of the case as that will have to be decided in accordance with the law by the trial Court. The petition deserves to be allowed for the very reason that the learned Magistrate has proceeded on an erroneous assumption that he is vested with the jurisdiction to permit the compounding of offence under Section 498-A of the I.P.C. inspite of the fact that the offence is not compoundable under Section 320 of the Cr.P.C. and further that two authorities relied upon by the learned trial Court placed in him such powers which otherwise the statute does not provide. As such the impugned order is quashed and set aside and the matter is remanded back to the trail Court to proceed further in accordance with the law from the stage when the application for compounding was filed by the parties. The learned trial Court would dispose of the matter as expeditiously as possible.
Rule is made absolute in the aforesaid terms.
14. Petition allowed.