Abdul Kayyum and Others vs State of U.P.

Umeshwar Pandey, J.—This criminal revision u/s 397/401 of the Code of Criminal Procedure is directed against the judgment and order dated 23.1.1985, passed by the Additional Sessions Judge, Saharanpur in Criminal Appeal No. 280 of 1984 preferred by the revisionists-accused against the judgment and order of conviction and sentence recorded against them by the trial Magistrate.

The revisionists-accused were tried for the offences punishable under Sections 452, 324, 323/34 and 506 of Indian Penal Code. The trial Magistrate before whom the case was concluded, after having considered the entire evidence on record was of the view that the offences aforesaid with which the accused were charged, had been fully established against them and accordingly he recorded a judgment of conviction against them and sentenced them to different periods of rigorous imprisonment and payment of fine for the said offences. Aggrieved against that judgment and order of conviction and sentence, an appeal was preferred before the learned Sessions Judge which was later on transferred to the Court of IIIrd Additional Sessions Judge. While the matter was pending in appeal, the parties filed compromise with the permission of the Court u/s 320 of the Criminal Procedure Code, for the offences punishable under Sections 323 and 324, I.P.C. The compromise was verified. The other offences punishable under Sections 452 and 506, I.P.C. were, since not compoundable, could not be compounded. The learned appellate court having due regard to the compromise filed in the case and after appreciation of the material available on the record and upon hearing the parties, was of the view that the offence punishable u/s 506, I.P.C. was not fully established and the evidence led from the side of prosecution for the said offence was wholly vague. Accordingly an order of acquittal was recorded for the said offence along with the offences (under Sections 323/34 and 324, I.P.C.) for which the parties had already filed and verified compromise. The learned appellate court, however, maintained the order of conviction for the offence punishable u/s 452, I.P.C., but it modified the sentence awarded by the trial court and directed the Appellants'' confinement till rising of the Court passed the impugned judgment dated 23.1.1985.

Aggrieved with the aforesaid judgment of the appellate Judge, which maintained the conviction of the revisionists-accused for the offence punishable u/s 452, I.P.C. the present revision has been preferred.

I have heard the learned Counsel for the revisionists and also the learned A.G.A.

The learned Counsel for the accused-revisionists while not placing any argument on the merits of the case for the maintenance of the order of conviction against the accused persons, for the offence punishable u/s 452, I.P.C. by the lower appellate court, has made a simple and straight submission that the revisionists in all propriety should have been acquitted for the offence punishable u/s 452, I.P.C. also. Relying upon the case law of Barsati and Ors. v. State of U. P. and Anr. 2000 (3) ACR 1881 (SC): 2000 (1) UP Cri. 14 and Bhuwan Chandra Tiwari and Ors. v. State of U. P. 2002 (1) JIC 622 (All) (LB), it has been contended that in all legal propriety the lower appellate court should not have maintained the order of conviction of the accused-revisionists for the offence punishable u/s 452, I.P.C. as the parties, for the two major offences, i.e., under Sections 324 and 323/34, I.P.C. had already compromised.

In the case of Barasti and Ors. (supra) the accused persons were convicted and sentenced for the offences punishable under Sections 147, 323/149, 325/149 and 304 Part II of Indian Penal Code by the trial court. In appeal before the High Court, the conviction recorded u/s 304, Part II of the I.P.C. was set aside, but the conviction and sentences awarded for the other offences by the trial court were confirmed. While the SLP was pending before the Supreme Court, the parties, i.e., the assailants and the victims both entered into compromise and joint application was made by them. It was stated that they were closely related to each other and in case the order of conviction is maintained, they were likely to be put into serious difficulties. The accused and the injured, thus, requested the Supreme Court to condone the offences stated to have been committed by the Appellants. It was under these circumstances and upon such facts available in the case, the Apex Court found that notwithstanding the provisions of Section 320, I.P.C. the appeal of the accused should be allowed on the basis of the statement made in the joint application filed by the parties. Accordingly, the order of conviction for the non-compoundable offence punishable u/s 147, I.P.C. was also set aside. The other offences punishable under Sections 323/149 and 325/149, I.P.C. were, however, compoundable under law.

The Supreme Court obviously has jurisdiction under Article 142 of the Constitution of India to ''make such order as it is necessary for doing complete justice in any cause or matter pending before it''. Such power is obviously not available to this Court whereby, for purposes of doing complete justice, the specific provisions of any statute could be ignored. Section 320 of the Code of Criminal Procedure postulates the procedure for compounding certain offences punishable under the sections of Indian Penal Code . Those offences have been specified in the first two columns of the tables. The first table deals with such offences, which are compoundable at the instance of the parties whereas the second table deals with such offences which are compoundable with the permission of the Court. The offence for which a composition u/s 320, Cr. P.C. was not permissible in the matter before the Supreme Court , was the offence punishable u/s 147, I.P.C. Since it was found by the Apex Court, in the peculiar facts and circumstances of the said case that it was necessary for doing complete justice in the case that the conviction for the offence punishable u/s 147, I.P.C. should also be set aside even in the face of the provisions of Section 320, Cr. P.C., it allowed the prayer to condone the said offence also. As I have already observed above, such power as is enshrined in Article 142 of the Constitution of India is not available to this Court, I refrain from bye-passing the provisions of Section 320, Cr. P.C. which does not permit a compromise to be filed and recorded by the parties in a case of criminal house trespass punishable u/s 452, I.P.C.

As regards the facts and circumstances under which the compromise was recorded in Bhuwan Chandra Tiwari''s case (supra), with profound respect to the observations of the Hon''ble single Judge of this Court, it does not lay down any principle of law that even in the face of the existing provisions of Section 320, Cr. P.C., a compromise can be accepted for a non-compoundable offence also. Simply because a compromise petition was forwarded by the State Legal Services Authority, it did not dispense with the rigors of the provision of Section 320, Cr. P.C. Since this Court does not have power parallel to the power held by the Supreme Court under Article 142 of the Constitution of India, the procedure as laid down in other Satutes (Section 320, Cr. P.C.) has to be followed.

Under the aforesaid circumstances and on the facts of the present case that the revisionists-accused had simply been sentenced with imprisonment till rising of the Court for the non-compoundable offence punishable u/s 452, I.P.C., it is not at all legally justifiable that ignoring the provisions of Section 320, Cr. P.C. the compromise filed by the parties before the appellate court should also be accepted for the purposes of condoning the aforesaid offence punishable u/s 452, I.P.C. The submissions, made by the learned Counsel for the revisionists in this context, thus, does not hold much substance and strength. The revision having no force, must fail.

The revision is hereby dismissed.