Pradosh Pattnaik and Others vs The State and Another

Heard.

Petitioners are the accused persons in G.R. Case No. 178 of 1995 arising out of Banpur Police Station Case No. 103/95 for the offences under Sees. 147, 148,341,323,427,380,386,337/149, I.P.C. and Section 9 (b) of the Indian Explosives Act has been taken. Petitioners have filed this application u/s 482, Code of Criminal Procedure (in short, ''the Code'') with the prayer to quash the order of cognizance dated 18.12.1995 on the ground that the parties have amicably settled their dispute outside the Court.

During the course of hearing the only question that arises for consideration as to whether a non-compoundable offence can be permitted to be compounded by exercise of inherent power and notwithstanding the bar provided in Sub-section (9) of Section 320 of the Code.

Learned Counsel for the Petitioners argues with reference to the cases of Mohd. Raft v. State of V.P., (1998) 15 OCR (SC) 1; Basanta Kumar Baral and ''Ors. v. State of Orissa and Anr./Ors. (1999) 16 OCR 78; Surendra Nath Mohanty and Anr. v. State of Orissa (1999) 17 OCR (SC) 25; Rajendra Kumar Jit and Ors. v. State of Orissa and Ors. (1999) 17 OCR 150 that if the parties have compromised and settled their dispute outside the Court and no useful purpose would be served by venturing into a trial, the proper and remedial steps which can be taken is by way of quashing the cognizance in exercise of inherent power.

Learned Addl. Standing Counsel relying on the ratio in the cases of Ram Lal and Another Vs. State of Jammu and Kashmir, and Ajaya Kumar Sahu and Ors. v. State of Orissa and Anr. (2000) 18 OCR 11 argues that in view of the provisions in Sub-section (9) of Section 320 of the Code when the Statute debars compounding of non-compoundable offences the cognizance order in such a case should not be quashed by invoking the inherent power.

In the case of Mohd. Raft (supra) while considering the legality and correctness of the conviction of the Appellant for the offences under Sections 323 and 325, I.P.C., on the statement of the parties and their neighbours the apex Court permitted them to compound the said offences. It may be noted that offence u/s 323, I.P.C. is compoundable under Sub-section (1) of Section 320 and offence u/s 325 is compoundable under Sub-section (2) of Section 320 of the Code. That decision is thus of no assistance to resolve the disputed issue. On the other hand, in the case of Surendranath (supra) and Ramlal (supra) the apex Court have consistently upheld the position of law that in view of the provision in Sub-section (9) of Section 320 of the Code direction for compunding of the offence which are not compundable is not permissible under law. In that compundable is not permissible under law. In that respect the previous judgments of the apex Court in the case of Ram Pujan and Others Vs. State of Uttar Pradesh, and AIR 1988 2111 (SC) were referred to and it was observed that the course adopted in those cases were not in accordance with law and the apex Court further held that in the case of Y. Suresh Babu v. State of A.P. and Anr. J.T. 1987 (2) 361 it be treated as perimetrium.

In the case of Basanta Kumar Baral (supra) a Division Bench of this Court on 11.12.98 propounded that a non-compoundable offence can be permitted to be compounded, though in rarest of rare case, by exercise of inherent power u/s 482 of the Code. Similar view was expressed by a learned Single Judge of this Court in the case of Rajendra Kumar Jit (supra). The ratio in those decisions are not in conformity with the decision of the apex Court in the above noted cases of Surendra Nath (supra) and Ramlal (supra). On the other hand, taking into consideration all the aforesaid factums this Court in the case of Ajay Kumar Sahu (supra) has held as follows:

Learned Counsel for the Petitioner states that in some decisions of this Court including a Division Bench of this Court has held that compounding of offence of a non-compoundable nature, in exceptional case, can be made in exercise of the inherent power u/s 482, Code of Criminal Procedure It is not necessary to refer to such decisions in view of a recent decision of a three Judges Bench of the Apex Court. In the case of Surendranath Mohanty and Anr. v. State of Orissa : (1999) 17 OCR (SC) 25 the apex Court have propounded that a non-compoundable offence cannot be compounded in view of legislative mandate in Sub-section (9) of Section 329, Code of Criminal Procedure and if they are not falling in the categories of offences enumerated in Sub-sections (1) and (2) of Section 320, Code of Criminal Procedure Their Lordships above further propounded that contrary ratio in the case of Mahesh Chand and Anr. v. State of Rajasthan J.T. 1998 (1) SC 618 and Y. Suresh Babu v. State of A.P. and anOrs. : JT 1987 (2) 361 be treated as perincuriam.

In view of the above settled position of law, on that ground alone, Petitioners'' application u/s 482 of the Code is liable to be rejected.

Apart form that, this Court may quash a cognizance order if cognizance of the offence is taken illegally or in the absence of evidence to show existence of a prima facie case. There is nothing in the record to show or suggest that in the present case learned Magistrate has taken cognizance of the above offences either illegally or in the absence of a primafacie case. In that respect no argument is advanced by the Petitioners.

In view of the aforesaid reasons, this Court dismisses the application u/s 482, Code of Criminal Procedure

There is nothing in the record to show that Petitioners have already appeared in the Court of J.M.F.C., Banpur. If the matter is pending at the stage of their appearance, because of the stay orders granted by this Court, it is further directed that if the Petitioners shall surrending that Court within a period of fifteen days hence and shall apply for bail learned J.M.F.C. may do well to hear and dispose of such bail application in accordance with law during the course of the day and preferably in the first hour. Registry is directed to immediately send a copy of this order to the Court below.