Juber vs State of Haryana

V.M. Jain, J.

This is a petition under Section 482, CrPC, filed by the accusedpetitioner, seeking quashment of FIR 235 dated 14.9.1996 under Section 377, IPC, registered in Police Station, Tauru (District Gurgaon) and all subsequent proceedings, arising out of the said FIR, on the basis of the compromise.

In the petition, it was alleged that the petitioner was challaned by the Police in the aforesaid FIR, which was lodged by complainantrespondent No. 1, Shaukat. It was alleged that after the submission of the challan, the accusedpetitioner was tried for the offence under Section 377, IPC and vide judgment dated 20.8.1999, he was convicted under Section 377 IPC, and was sentenced to undergo RI for three years and to pay a fine of Rs. 5000/. It was alleged that aggrieved against the aforesaid judgment of the trial Court, the accusedpetitioner had filed an Appeal before the Sessions Court and the same was now fixed 16.10.2001. It was alleged that during pendency of the Appeal, the accusedpetitioner and the complainantrespondent No. 2, arrived at a compromise with the intervention of the respectables of the village, including the Sarpanch and the Lambardar and as a result of the said compromise, the parties had resolved their dispute amicably. A copy of the said compromise was attached as Annexure P3 with the petition. It was alleged that under section 320, IPC, some of the offences were compoundable by the aggrieved persons and some of the offences were compoundable by the aggrieved persons but with the leave of the Court. It was alleged that the offence under Section 377, IPC, was not compoundable even with the permission of the Court and as such, the inherent powers of this Court were being invoked for quashing the aforesaid FIR. It was alleged that this Court and the Hon''ble Supreme Court, in various cases, had shown indulgence and had compounded the offences, even at the appellate stage.

Reliance was placed on the judgment of this court, in Criminal Misc 30116M of 1998, Charat Singh and others v. State of Haryana and others decided on 2.11.2000, copy Annexure P4.

I have heard learned counsel for the accusedpetitioner and gone through the record carefully.

Admittedly, the accusedpetitioner was convicted under Section 377, IPC, and was sentenced to undergo RI for three years and to pay a fine of Rs. 5000/ and the Appeal against the aforesaid conviction and sentence is pending in the Sessions Court. It is also not disputed that the offence under Section 377, IPC, is not compoundable under Section 320, CrPC, even with the permission of the Court. Section 320(9), CrPC reads as under :

"No offence shall be compounded except as provided by this Section."

Section 320, CrPC has given two tables. The first table gives the list of offences, which are compoundable by the aggrieved party with the accused and the second table gives the list of the offences, which are compoundable by the aggrieved person with the accused, with the permission of the Court. Section 320(5), CrPC, provides that where the accused has been committed for trial or where the accused was convicted and the appeal is pending, no composition of the offences shall be allowed without the leave of the Court. Under Section 320(6), CrPC, it is provided that the High Court and the Court of Session, exercising powers of revision under Section 401, CrPC, may allow any person to compound under Section 320, CrPC. In the present case, as referred to above, the offence under Section 377, IPC, is not an offence which is included in either of the two tables under Section 320, CrPC, and is, thus, not compoundable even with the permission of the Court.

In Surendra Nath Mohanty v. State of Orissa, 1999(2) Recent Criminal Reports 683 , the Hon''ble Supreme Court was considering the effect of Section 320(9), CrPC, in respect of an offence under Section 326, IPC, which was not compoundable, even with the permission of the Court and it was held as under :

"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. Subsection (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, subsection (2) provides that, the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, subsection (9) specifically provides that "no offence shall be compounded except as provided by this Section." In view of the aforesaid legislative mandate, only the offences 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."

With regard to the earlier decisions of the Supreme Court, reported as Ram Pujan and ors. v. State of Uttar Pradesh, 1973(2) SCC, 456 and Mahesh Chand and anr. v. State of Rajasthan, 1988(1) RCR(Crl.) 498 , it was held by the Hon''ble Supreme Court that these "can be treated as per incuriam, as pointed attention of the Court to subsection (9) of Section 320, CrPC, was not drawn. With regard to another case, reported as Y. Suresh Babu v. State of AP and another, JT 1987(2) SC 361, it was held by the Hon''ble Supreme Court that in the said case, it was specifically observed that the said case shall not be treated as a precedent. Furthermore, the Hon''ble Supreme Court had placed reliance on the law laid down by their Lordships of Supreme Court in the case reported as Ram Lal and another v. State of J & K, JT 1999(1) SC 147 : 2000(1) RCR(Crl.) 92 (SC) wherein, after referring to Section 320(9), CrPC, the Hon''ble Supreme Court had observed that the decision in Mahesh Chand''s case (supra) was rendered per incuriam. It was further held by the Hon''ble Supreme Court in 1992(2) RCR 683 (supra) that the course adopted in Ram Pujan''s case (supra) and Mahesh Chand''s case (supra) was not in accordance with law.

In view of the law laid down by their Lordships of Supreme Court, in Mahesh Chand''s case (supra) and Ram Lal''s case (supra), in my opinion, no case for quashing the aforesaid FIR under Section 377, IPC, and all subsequent proceedings, taken thereon, is made out, merely on the ground that the parties have entered into a compromise and that too after the conviction of the accusedpetitioner and during the pendency of the Appeal, especially when the offence under Section 377, IPC, is not compoundable, even with the permission of the Court.

So far as the judgment of this Court, in Criminal Misc No. 30116M of 1998, Charat Singh and anr v. State of Haryana, copy Annexure P4, relied upon by learned counsel for the accusedpetitioner, is concerned, in my opinion, the same would have no application to the facts of the present case, in view of the law laid down by the Hon''ble Supreme Court, in Mahesh Chand''s case (supra) and Ram Lal''s case (supra). Infact, these judgments run counter to the law of the land, laid down by their Lordships of Supreme Court.

For the reasons recorded above, there is no merit in the present petition and the same stands dismissed.