Extending the Frontiers of ‘Compounding of Offences’ under Section 320 of the CrPC
bhriguapamidighantam
14–21 minutes
The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion…. We consider it a success of the finer human spirit over its baser tendency for conflict.”[1]
The Supreme Court of India in Shakuntala Sawhney v. Kaushlya Sawhney, (1979) 3 SCR 639.
While retributive justice has been one of the cornerstones of our justice system since time immemorial – from the Hammurabian dictate of an “eye for an eye” to Kant’s assertion of penal law being a ‘categorical imperative’, the quintessential question remains: what happens when Shylock does not want the pound of ‘flesh’ owed to him? What happens when Shylock and Antonio want to “settle” their differences amicably by coming to a “compromise”, and thus, putting their dispute to bed? This exact conundrum of dispute-settlement has been addressed under criminal law as the ‘compounding of offences.’
‘Compoundable offences’ refer to those offences which the ‘afflicted party’ or complainant, whilst acting in bona fide interests, may compromise to have the charges against the accused “dropped”. The inherent rationale behind compounding is that on satisfying itself that the parties want to live peacefully, since no dispute remains, the Courts should compound any remaining criminal proceedings. That being said, certain offences under criminal jurisprudence are perceived to be so grave and egregious that they shock the collective moral conscience of the society[2] and thus are deemed a crime against not just an individual, but the society at large. This is also the statutory provision espoused by the Indian Penal Code, 1860 (hereinafter “IPC”)
It is through the means of this paper that the author intends to examine whether the principles of criminal justice underlying the philosophy of Section 320 of the IPC can be extended to non-compoundable offences, and if they can, under what principles and parameters must they be done under. In doing so, both sides of the coin – of reformation against retribution; offences against the State and the individual; and remedies for civil and criminal disputes shall be examined. The author shall also seek to inspect the statutory and judicial provisions and the relevant case laws in attempting to address this conundrum.
In India, the Code of Criminal Procedure, 1973 (hereinafter “CrPC”), in consonance with the aforementioned rationale, under Section 320 classifies the “compounding of offences” into three separate categories: firstly, offences that may be compounded;[3] secondly, offences of a graver naturethat may be compounded butonly with the permission of the Courts;[4] and consequently, lastly, offences of the gravest and most serious nature that are deemed a crime against the society at large and thus may not be compounded.
The modus operandi of theprocedural provisions with regards to the compounding of offences is well-extenuated upon under Section 320 as the table appended to the section provides for the offences punishable and its corresponding provisions under the Indian Penal Code (hereinafter “IPC”) in the first two columns and the third column provides the power of composition to the victim or ‘afflicted party’. Section 320(3),[5] extends the ‘general rule’ of compounding accorded to offences under Section 320 to the abetment or attempt to commit such offences in a similar manner. This was affirmed by the Supreme Court in Mahesh Chand v. State of Rajasthan[6] where the Court compounded the attempt to murder (under Section 307)[7] – despite it not falling under either Section 320(1) and 320(2) of the CrPC. Section 320(5) extenuates that compounding is impermissible without the leave of the Court where the trial is proceeding or where the Court to which an appeal is preferred in cases where the accused has been committed for trial or where the accused has already been convicted and an appeal is pending.[8] Section 320(6) provides that the High Courts or Courts of Session may in furtherance of their powers of revision under Section 401,[9] may permit the compounding of an offence provided the individual meets the competency requirements prescribed under Section 320.[10] Meanwhile, Section 320(7) limits compounding in cases wherein the accused is by virtue of a prior conviction – liable to either enhanced punishment or punishment of a different kind owing to the commission for such offence.[11] The effect of compounding an offence under Section 320 is deemed to be concomitant to the effect of acquittal of the accused with whom such offence has been compounded.[12] Furthermore, Section 320(9) states that no offence may be compounded in contravention of the provisions provided under Section 320.
In line with the aforementioned statutory provisions, the Supreme Court in Rameshchandra Thakkar vs. A. P. Jhaveri & Anr. observed that if a non-compoundable offence has been compounded against the provisions of the law and the accused has been acquitted based on the same compromise – the High Court has the power to set aside such order(s).[13] The rationale for not permitting the composition of such offences no mentioned under Section 320, as stated previously, is the nature of their seriousness and gravity. However, such offences may be quashed, in that there is an ‘obliteration of proceedings’ – where the accused is neither ‘discharged’ nor ‘acquitted’ and can always be re-charged if deemed fit.[14] Congruently, the High Court of Delhi Arvind Bhushan Chugh v. Dr. Promilla[15](whilst quashing an FIR under Sections 406, 498-A and 34 of the IPC) observed:
“The law is meant to do justice and not to force the parties for a protracted litigation. This Court has inherent power to compound a non-compoundable offence when the interest of justice so requires. In this case, since the complaint had arisen out of matrimonial differences which ultimately have been settled, I see no reason why they should continue with the criminal cases after they have settled their differences.”[16]
Ergo, with regards to non-compoundable offences, notwithstanding the restriction on composition of offences in contravention of Section 320(9), the High Courts have nonetheless made use of their inherent saving powers under Section 482 of the CrPC to circumnavigate the statutory provisions relating to compounding of non-compoundable offences – in the pursuit of justice to “quash” criminal proceedings – where further prosecution becomes illegal as no offence is made out or there is an abuse of process.[17]
In pursuance of this power granted to them under Section 482, various High Courts have quashed multiple proceedings against the accused in non-compoundable offences where parties had amicable settled the dispute, for instance: the High Court of Delhi in Vinod Bansal v. State,[18]Sanjay Sandhya v. State,[19]R.S. Arora v. State,[20] Arun Kumar Vohra v. Ritu Vohra;[21]the High Court of Punjab and Haryana in Mohinder Singh v. State of Punjab,[22] Nand Lal v. State of Haryana,[23] Samjeet Kamur v. Teja Singh,[24]Mahant Kesar Dass v. Gurdev Singh alias Gurdev;[25]theHigh Court of Rajasthan in an array of marriage separation and cruelty cases in Kailash Chandra v. Basanti,[26]State of Rajasthan v. Gopal Lal,[27] Sri Narain v. State of Rajasthan;[28]the Bombay HighCourt in Suresh Nathmal Rathi v. State of Maharashtra[29]and the High Court of Andhra Pradesh in Thathapadi Venkatalakshmi v. State of Andhra Pradesh[30]
It is noteworthy that the Supreme Court too has agreed to the composition of non-compoundable offences in multiple verdicts on grounds of “maintenance and restoration of the harmony of the society”[31][32] and the reduction of sentence or punishment owing to a request for composition as seen in the judgements in Rajinder Singh[33]and Ram Pujan.[34]
However, starkly converse views have also been opined in the past. For instance, the High Court of Karnataka in State of Karnataka v. H.S. Ravanasidappa[35] held that High Courts or subordinate criminal courts have no power to power to grant permission to compound a non-compound offence which does not come within either of the two tables under Section 320 (1) and (2) of the CrPC. Similarly, in a reference made by the High Court of Karnataka to the Apex Court, it was observed that:
“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 inquired into resulting either in conviction or acquittal.”[36]
The Full Bench of the High Court of Rajasthan in Mohan Singh v. State,[37] directly addressed the ramifications of High Courts invoking Section 482 for the purpose of ‘quashing’ non-compoundable offences and ruled that while the saving powers accorded to the High Courts by virtue of the Section 482 were “very wide”, the very plenitude of such powers requires that the Courts exercise a great deal of caution in invoking them – especially not invoking them as against the express bar of law in any other provision. Thus, ruling that the High Courts have no power under Section 482 to permit composition of a non-compoundable offence and overruling the Single Bench in Hari Narain.[38]
In light of the vast differences in opinion and conflict in law with regards to the catena of judicial decisions in the High Courts and the Supreme Court, the saga of ‘quashing’ non-compoundable offences seems to have been finally been put to bed in the case of the State of Madhya Pradesh v. Lakshmi Narayanan and Ors.[39]where the Court laid down guidelines for the exercise of inherent saving powers of High Courts under Section 482 of the CrPC whilst quashing criminal proceedings in cases of non-compoundable offences. In this case, the accused were charged with Sections 307 and 34[40] and Sections 323 and 294[41] – in separate appeals that were jointly taken up.The High Court of Madhya Pradesh, relying upon a previous verdict of the Supreme Court in Shiji Pappu & Ors. v. Radhika & Ors.[42](the substratum of which was more of a civil dispute), quashed the criminal proceedings. However, the Division Bench of the Supreme Court, acknowledging the conflict between two other Division Bench judgements in Shambhu Kewat[43]and Narinder Singh,[44] referred the matter to the Three-judge bench of the Apex Court.
The Supreme Court in the Shambhu Kewat case had opined that while criminal courts were bound to the powers circumscribed to it under Section 320, the High Courts were to be guided by the material on record to form an opinion whether to quash a criminal complaint in furtherance of its powers under Section 482 of the CrPC – which essentially conferred inherent powers on a High Court to pass orders on three predominant grounds: firstly, to give effect to the CrPC; secondly, to prevent any ‘abuse of the process’ of any court; or lastly, to otherwise secure ‘ends of justice’. Here, the Court stressed upon the fact that the exercise of the High Court’s powers under Section 482 were to meet the ‘ends of justice’, albeit the ultimate consequence viz. acquittal, dismissal or indictment.
The Supreme Court in the Narinder Singh case went into the question of “public interest” and in doing so referred heavily upon the line of reasoning in Gian Singh[45] – where the Supreme Court had opined that High Courts must desist from quashing criminal proceedings where the offence is of heinous and serious nature and proceed to do so only in civil matters where the “wrong” is commercial or ‘personal in nature’[46]and an amicable settlement is reached between parties, and in such cases, if the Court opines that the possibility of conviction is remote and the persistence of a criminal case would inflict extreme injustice upon the accused, the High Courts may then quash the criminal proceedings;[47] and Bhagyan Das[48] – where the Court held that even compoundable offences which had a significant societal impact could be rejected by the Courts. In line with this reasoning, the Supreme Court in Narinder Singh observed that the High Court could quash criminal proceedings whilst dealing with non-compoundable offences. However, the power to do so under bestowed under Section 482 must be used sparsely and with great caution. In doing so, the Courts addressed the difference between offences of public and private nature with regards to their in actu ramifications – here, despite Section 307[49] of the IPC being a crime “against the society”, the power to examine whether the charge is prevalent only on paper or if there is sufficient evidence to prove otherwise lies with the High Court.
After appreciating the relevant statutory and case laws law laid-out in both the aforementioned cases, the Supreme Court in Lakshmi Narayanan[50]held that there must be a ‘harmonious reading’ of the judgement in Narinder Singh and as a whole – the circumstances existing therein, on the basis of which, the Court then established the guidelines for quashing non-compoundable offences by High Courts under Section 482 of the CrPC: Firstly, the powers conferred to High Courts under Section 482 to quash criminal proceedings for non-compoundable offences in cases where the issue is predominantly civil in nature, especially those arising out of commercial transactions, matrimonial or family disputes – where parties have reached an amicable settlement; Secondly, High courts must desist from quashing criminal proceedings if the offence is ‘public’ in nature is a heinous and serious in nature – having a serious impact on society; Thirdly, High Courts must not exercise this power for offences under special and express statues (such as the Prevention of Corruption Act, 1988);[51]Fourthly, offences under Section 307 and the Arms Act, 1959 et al. are to be classified as “public crimes” and no settlement may be reached with the afflicted individual. Fifthly, the High Court is expected to weigh the antecedents and conduct of the accused whilst quashing crimes “private” in nature and which don’t have a serious impact on society; and thereby, setting aside the orders of the High Court of Madhya Pradesh.
The judgement in Lakshmi Narayanan is a landmark one in that it demystified the ‘conflict of law’ pertaining to quashing under Section 482 prevalent in Shambhu Kewat and Narinder Singh and also filled the lacuna by setting forth guidelines that must be adhered to by High Courts whilst exercising their inherent powers sparingly and with great caution. However, notwithstanding the strides made in this key decision, there exists an inherent limitation in Section 482 in as much as the Court merely exercises its power to quash criminal proceedings that are an ‘abuse of the process of the Court’ that are compelling for the ‘interests of justice’. The consequence of the exercise of power holds no guarantee in that it would usher in an amicable ‘settlement’ and ensure ‘enduring and lasting peace’.
There is a qualitative and a fundamental distinction between the jurisdiction that a Court exercises while compounding offences under Section 320 and exercising jurisdiction under Section 482. While the former is grounded in compromise and amicable settlement leading to long-term concord and amity between the parties, the latter is a sheer exercise of powers having no concern about the agreement (or disagreement thereof) of the parties – the consequence thereof is to be borne by the parties irrespective of their concurrence.
The underlying philosophy behind the ‘composition of offences’ is to foster the preambulatory principle of ‘fraternity’ and promote harmony and the spirit of brotherhood amongst all.[52]If this is the Constitutional goal propelling the criminal justice system to move towards the same objective, then it must be ensured that there is a regime under which disputes and differences for non-compoundable offences are also settled harmoniously and in consonance with the aforementioned manner. The biggest challenge in this regard is the grave and serious nature of offences that are deemed non-compoundable and the consequent need for retribution as a requirement of the criminal justice system. This necessarily requires taking some legislative and judicial measures.
Keeping in mind the Constitutional values and the principle of reformation under criminal law, a third category of offences could be drawn up – which could be slightly more serious than those falling under 320 (2), where the offences could be compounded with the permission of the Court. Under this category, composition of the offence should be permitted only upon satisfaction of the following conditions: Firstly, there must be an identifiable person who is eligible to compound the offence; secondly, such a person must freely and voluntarily agree to compound the offence – upon reasonable verification of the same by the Court; thirdly, the accused must agree to be put on probatory period specified for composition of that particular offence; fourthly, during this probatory period, the accused as a part of his rehabilitative process must perform specified services to the community that mist be specifically enlisted; fifthly, ideally the statutory authority like the National Legal Services of India (NALSA) could be the nodal agency for monitoring and enabling the performance of the rehabilitative process by the accused; only upon the successful completion of the probatory period followed by the certification of the NALSA, that the provision of Section 320(8) should apply. This, in my opinion, is a sufficient security to satisfy the dual-requirements of retribution and rehabilitation. While it is understood that legislation is a long-drawn process, meanwhile, for fulfilling the constitutional mandate, the Courts of law can step in following the Vishaka principle and prescribe the five aforementioned conditions before quashing a criminal proceeding which is non-compoundable. Naturally, the rigour and limitations upon quashing will be liberalised keeping in view the constitutional value of ‘fraternity’.
[1]Shakuntala Sawhney v. Kaushlya Sawhney (1979) 3 SCR 639.
[2]SeeMachhi Singh & Ors. v State of Punjab 1983 AIR 957.
[3] Section 320(1) of the Code of Criminal Procedure, 1973.
[4] Section 320(2) of the Code of Criminal Procedure, 1973.
[5] Section 320(3) of the Code of Criminal Procedure, 1973.
[6]Mahesh Chand v. State of Rajasthan 1988 SC 2111.
[20]R.S. Arora v. State 1995 A1HC 2769 (Delhi) (per Vijender Jain, J).
[21]Arun Kumar Vohra v. Ritu Vohra 1995 (2) Recent Criminal Reports 76 (per Dalveer Bhandari, J, para 17).
[22]Mohinder Singh v. State of Punjab 1993 (2) Chandigarh Criminal Cases (CC Cases) 444.
[23]Nand Lal v. State of Haryana 1996 (3) CC Cases 82 (HC).
[24]Samjeet Kamur v. Teja Singh 1996 (3) CC Cases 73 (HC).
[25]Mahant Kesar Dass v. Gurdev Singh 1996 (1) Recent CR 697 (per Swatanter Kumar, J) [observed that the “real twin-test laid down by the Supreme Court for permitting invocation of inherent powers under section 482 of the Code is to prevent abuse of process of court or otherwise to secure ends of justice”]
[26]Kailash Chandra v. Basanti 1989 (3) Crimes 676.
[27]State of Rajasthan v. Gopal Lal 1992 Cri LJ 273.
[28]Sri Narain v. State of Rajasthan 11 (1994) Current Criminal Reports (CCR).
[29]Suresh Nathmal Rathi v. State of Maharashtra 1992 Cri LJ 2106.
[30]Thathapadi Venkatalakshmi v. State of Andhra Pradesh 1991 Cri LJ 749.
[31]Ramjilal v. State of Haryana 1983 Cri Appeals Reporter 58.
[32]Shakuntala Sawhney v. Kausalya Sawhney (1979) 3 SCR 639.
[33]Rajinder Singh v. State (Delhi Administration) AIR 1980 SC 1200.
[34]Ram Pujan v. State of Uttar Pradesh 1973 2 SCC 456.
[35]State of Karnataka v. H.S. Ravanasidappa 1994 Cri L J 2928.
[36]Biswabahan Das v. Gopen Chandra Hazarika 1967 Cri L J 828.
[37]Mohan Singh v. State 1993 Cri L J 3193 (per JJ., K.C. Agarwal, M.B. Sharma and N.L. Tibrewal)
[38]Hari Narain v. State of Rajasthan 1989 RCC 335.
[39]State of Madhya Pradesh v. Lakshmi Narayanan and Ors 2019 (5) SCC 688 (per JJ, A.K. Sikri, Abdul Nazeer, and M R Shah).
[43]State of Rajasthan v Shambhu Kewat (2014) 4 SCC 149.
[44]Narinder Singh v State of Punjab (2014) 6 SCC 466.
[45]Gian Singh v. State of Punjab (2012) 10 SCC 303.
[46]ibid. Corruption cases or monetary and financial offences affecting the society at large aren’t therefore included in its’ ambit. Also See: B.S. Joshi 2003 4 SCC 675.
[47] See Dilbagh Singh v. State of Uttarakhand 2018 SCC OnLine Utt 569.
[48]Bhagyan Das v. State of Uttarakhand (2019) 4 SCC[See para 9: “Merely because an offence is compoundable under Section 320 CrPC, still discretion can be exercised by the court having regard to nature of offence.”].
[49] Section 307 of the Indian Penal Code, 1860 (Attempt to Murder).
[50]State of Madhya Pradesh v. Lakshmi Narayanan and Ors.[50]Criminal Appeal No 349 of 2019 w/ Criminal Appeal No 350 of 2019 (per JJ, A.K. Sikri, Abdul Nazeer, and M R Shah).
[51] See Gopakumar B.Nair vs C.B.I & Anr (para 14)
[52] Article 51A(e) of the Constitution of India, 1950.
Bhrigu A. Pamidighantam 
Leave a comment