Mohan Singh and Another vs State of Raj.

N.L. Tibrewal, J.—The petitioner Mohan Singh was prosecuted u/s 326 IPC and ultimately convicted by the Trial Magistrate and sentenced to one year RI and fine of Rs. 1000/- vide judgment dated 29.3.1985.

Against his conviction and sentences he preferred an appeal which was pending for disposal in the Court of Additional District & Sessions, Jaipur District, Jaipur (Camp Sarnbhar Lake). Before the Appellate Court, an application was moved which was signed by the accused petitioner Mohan Singh and the complainant Gulab Singh, with a prayer to grant permission to compound the offence of 326 IPC under which the petitioner Mohan Singh was convicted by the Trial Magistrate. The application was rejected by the learned Additional Sessions Judge on February 8, 1991 on the ground that the offence u/s 326 IPC is not compoundable as such, no permission to compound the said offence can be granted.

Now this petition has been filed jointly by the accused and the complainant u/s 482 Cr.P.C. before this Court, being aggrieved against the aforesaid order of the learned Additional District & Sessions Judge refusing the permission to compound the offence u/s 326 IPC.

I have heard Mr. Mishra the learned Counsel for the petitioner and Shri Sharma, the learned Public Prosecutor. Mr. Mishra urges that though the offence u/s 326 IPC is not compoundable but this Court, in exercise of powers u/s 482 Cr.P.C. can allow composition of the offence to secure the ends of justice in the special circumstances of a particular case. The learned Counsel submits that there are special circumstances in the case which were narrated in the application moved before the Additional District & Sessions Judge, a certified copy of the same has also been filed along with this petition. The learned Counsel has also placed reliance in Hari Narain and Ors. v. State of Rajasthan 1989 R.C.C. 335, paras No. 5 to 6 of the aforesaid judgment are reproduced below as the learned Counsel has placed reliance on the same:

It is true that the offence u/s 326 IPC is not compoundable even with the permission of the Court, but nothing in the Code Prevents this Court u/s 482 Cr.P.C. to allow composition to secure the ends of justice in the special circumstances of a particular case. The special circumstances in the case are that the appellants and the injured are real cousins, there was some dispute between them relating to the aforesaid agricultural land which had been gifted by the Khatedar Badri Narain (PW/9). A Counter FIR had also been lodged by Sita Ram against the complainant party. Injuries had also been sustained by Madan Lal and Sita Ram appellants. The land dispute has been settled between the parties and, now they are in good relations. In view of all these facts, It appears just and proper to allow composition of the offence between the complainants and the appellants.

It is, therefore, directed that the Sessions Judge, Jaipur District, Jaipur will accord permission to the injured complainants and the appellants to compound the offences after giving an opportunity to the parties and after being satisfied that the compromise has been agreed upon. The parties are directed to present themselves before the Court of Sessions Judge, Jaipur District, Jaipur on 27th May, 1989, for the above purpose. The file of the trial Court and the application for compounding the offence may be transmitted to the trial Court immediately.

Contrary to this, the learned Public Prosecutor submits that Section 320 Cr.P.C. deals with compounding of offences. The learned Counsel submits that only those offences punishable under the sections of IPC specified in the first two columns of the table (given in that section) may be compounded with the permission of the Court or without permission as provided in that section. The learned Public Prosecutor further submits that the offence u/s 326 IPC, which is punishable with imprisonment for life or imprisonment for 10 years and fine, cannot be compounded even with the permission of the Court. The learned Public Prosecutor submits that a thing which is not permissible under the law cannot be allowed to be permitted in exercise of powers u/s 482 Cr.P.C.

I have given my thoughtful consideration to the above rival contentions. Section 320 IPC is the only provision in the Code of Criminal Procedure which deals with compounding of offences. From the perusal of the said provision it is clear that only those offences enumerated in the two tables given in the said section can be compounded either with permission of the Court or without permission as per the said provision. It is further noteworthy that the effect of the composition of offences is acquittal of the accused for the offence which has been compounded as provided under Sub-section (8) of Section 320 Cr.P.C. Then Sub-section (9) of the said section reads as follows : -"No offence shall be compounded except as provided by this Section."

The aforesaid Sub-section (9) makes it clear that the court has power only to allow composition of offence which are provided in Section 320 Cr.P.C. and except those offences, no other offence can be compounded. This Sub-section creates a complete bar on the powers of the Courts also.

Then a further question of law arises for consideration as to whether a thing can be permitted to be done which has been expressly prohibited under the law. The power to be exercised u/s 482 Cr.P.C. is in its nature extra-ordinary. It is also a settled law that no Court can claim inherent jurisdiction to exercise powers which are expressly taken away by legislation. When there are express provisions of law, there is no inherent power in the High Court to override them. No Court can invoke new categories of inherent jurisdiction.

I am of the confirmed view that in view of Sub-section (9) of Section 320 Cr.P.C. the offences other then enumerated in the two tables given in that section, cannot be compounded. When there is an express legislative prohibition then the same cannot be done in exercise of powers u/s 482 Cr.P.C.

What I have stated above does not mean that the Court cannot quash the proceedings in a given case, in exercise of powers u/s 482 Cr.P.C. in order to secure ends of justice. This view I have taken in another case. But here, the petitioner Mohan 1 Singh has been convicted u/s 326 IPC by the Trial Court and his conviction cannot be set aside and be cannot be acquitted allowing the composition of offence u/s 326 IPC, which is otherwise not permissible.

Therefore, I am of the view that this matter requires an authoritative judgment by a Larger Bench on the following questions of law:

(i) Whether composition of offence/offences, except as provided by Section 320 Cr.P.C. can be permitted in exercise of powers u/s 482 Cr.P.C. specially when Sub-section (9) of Section 320 Cr.P.C. expressly prohibits ;

(ii) If the answer is given in affirmative, whether this permission can be granted after the conviction of the accused under the offence/offences which is/are not compoundable u/s 320 Cr.P.C.

Let the file of this case be placed before the Hon''ble Chief Justice for constitution of a Larger Bench to decide the aforesaid questions of law.