The State vs Mohd. Akbar and Others

G.D. Sharma, J.—The State has filed Acquittal Appeal (No. 20 of 1995) against the judgment dated 24-11-1994 passed by the learned

Sessions Judge, Poonch whereby he acquitted the respondents herein. It is stated that the trial Court has committed error in appreciating the

evidence and the law.

On behalf of the respondents, IA-1 /96 was presented by Mst. Zainab Bi, who is the complainant in this case wherein it is stated that during the

currency of this appeal the parties have entered into a compromise and they want to compound the offences under Sections 323/395, RPC

because the parties reside in the same village and this litigation which was started in the year 1988 is proving as a stumbling block for restoring their

age old brotherhood and the complainant who is now an old lady and bed-ridden wants to die peacefully after the village Panchayat had settled the

differences between them and the parties want to live in peaceful atmosphere in future as well.

Instances are given of the following cases where the Apex Court and this Court had granted permission to compound the offences which were

non-compoundable and they are :-

(i) AIR 1988 2111 (SC)

(ii) Ved Parkash v. State Criminal Appeal No. 25/97, decided by this Court on 25-9-1992 (sic).

(iii) Joginder Singh v. State Criminal 1st Appeal No. 5/93 decided by this Court on 18-10-1996.

In ail the above stated cases permission was granted to the parties for compounding the offences which under law were non-compoundable.

Heard the arguments.

The counsel appearing for the applicants (respondents herein) has relied upon the ratio of the orders passed in the above cited cases as well as

contended that this Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has

in view of the long lines of the decisions of the Apex Court when the punishment/penalty awarded shocks the judicial conscience.

In support of this argument, the learned counsel has referred to the decision of the Apex Court rendered in the case of B.C. Chaturvedi Vs.

Union of India and others, wherein Hon'ble Mr. Justice B. L. Hansaria, in para 23 has held as under:-

It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to

think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be

ordered. Absence of provisions like Article 142 is not material according to me. This may be illustrated by pointing out that despite there being no

provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo

Singh's case AIR 1963 SC 1909, that the High Courts too can exercise power of review, which inheres in every Court of plenary jurisdiction. I

would say that power to do complete justice also inheres in every Court, not to speak of a Court of planary jurisdiction like of High Court. Of

course, this power is not as wide which this Court has under Article 142. That, however, is a different matter.

The counsel appearing for the appellant-State had raised the objection that offence u/s 395, RPC cannot be compounded being non-

compoundable offence and wanted to produce some law within two days, but has failed to do so.

The Apex Court in the case of AIR 1988 2111 (SC) had granted the permission by treating that as a special case to be compoundable by

directing the trial Court to permit the parties to compound the offence when the accused were acquitted by the trial Court but convicted by the

High Court and the counter case arising out of the same, transaction stood already compromised. After examining the nature of the case and the

circumstances under which the offence was committed it was thought proper for the trial Court to grant the permission for compounding the

offence. The Apex Court again in the case of B.C. Chaturvedi Vs. Union of India and others, had held that the mere fact that there' is no provision

parallel to Article 142 relating to the High Courts, it cannot be a ground to think that they have not to do complete justice and if the moulding of

relief would do complete justice between the parties, the same cannot be ordered.

Adverting to the facts of the present case, it is found that the compromise is sought in respect of an offence which is not compoundable (395

RPC). The applicants-respondents have already been acquitted by the trial Court. The reason assigned for compounding the offence is that the

complainant, who is bed ridden and in her advance age wants to die with a sense that she has no ill-will or grouse against the applicants-

respondents. On these facts and the circumstances the relief claimed can be moulded to do justice between the parties. However, this view cannot

be cited as a precedent that in each and every non-compoundable offence such a permission can be obtained as a matter of right. Such an unusual

course can be adopted by the Court on the existence of special circumstances. On this view of the matter, the application is accepted. The trial

Court is directed to accord permission to the parties for compounding the offence on a formal request being made on that behalf. The compromise

deed placed on the record of this appeal cannot be acted upon in the absence of proper permission. Consequently, the appeal also stands

disposed of. The counsel of the respondents is directed to cause the appearance of the parties before the trial Court on 20-9-1998. Office is

directed to send back the record of the trial Court.