“COMPOUNDING OF OFFENCE” – WHETHER UNILATERAL OR BILATERAL ?
M. KARUNANITHI BSc., M.L., SENION PANEL COUNSEL, UNION OF INDIA FORMER SPECIAL PUBLIC PROSECUTOR, Q BRANCH CID
HIGHCOURT – MADURAI BENCH
Email:- kanlaw1971@gmail.com
Introduction :-
There are number of cases in which litigants are coming for compounding offences both in compoundable offences and in non-compoundable offences. Section 320 of the code of criminal procedure, 1973 speaks about compounding of offences. Now, the point for consideration is whether the compounding of offence is unilateral or bilateral. Whether, the victim can be permitted to move for compounding the offence in the absence of accused. In this article the author intends to discuss whether the victim alone can move the court for compounding the offence (or) consent of the accused is necessary i.e. to say whether compounding of offence is unilateral or bilateral. The topic can be analyzed on the following sub headings,
1) General Discussion
2) Difference between withdrawal of prosecution and compounding of offences
DISCUSSION :-
For the better understanding Section 320 of Cr.P.C, 1973 is extracted hereunder,
Section 320. Compounding of offences –
(1) The punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that table,
Section 320(a) Cr.P.C strictly speaks that except as provided under section 320 (1)- (8) Crl.P.C. no offence can be compounded.
Withdrawal from prosecution and compounding of offences
For easy refer section 321 is extracted hereunder
321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence-
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he hag been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.
The Public prosecutor or Assistant Public Prosecutor in-charge of the case has to move that court, where the case is pending and the prosecution may be withdrawn only with the consent of the court.
The main difference between withdrawal from prosecution and compounding of offence is that to withdraw the prosecution, Public prosecutor or Assistant Public Prosecutor in-charge of the case has to get consent from the court and victim has to give consent in case of compounding of offences.
Compounding of offence whether unilateral or bilateral
Compounding - meaning
SM Jeyaram Vs State of Karnataka – 1976 Crl. LJ 217
Compromise and compounding are not one and the same distinction – discussed Para 9 of the above judgment.
“The above position, according to Miss Vasudha, cannot be pursued to its logical conclusion in the facts and circumstances of the instant case. Even if we take it for the sake of argument that the accused committed theft within the meaning of Section 379, I. P. C, the alleged offence was compromised between the parties, without any prejudice, about two years prior to the Police charge-sheet being filed before the Magistrate. To call the 'compromise' as 'compounding, is a distinction with quite a lot of difference. The two cannot be equated. After the parties had compromised among themselves, the Police had no business at a later stage to butt into the Court and file a charge-sheet and then further represent that the charge-sheet being one for theft under S. 379, I. P. C, can be compounded only with the permission of the Court. As already mentioned this was not a case of compounding but compromise, long before the Police filed the charge-sheet. I do not agree with the learned State Public Prosecutor that the permission of the Court ought to have been obtained. There was no question for permission for compounding, as the compromise was already a fait accompli”.
2004 Crl.L.J 2274 –Rameshbabulal Baheti Vs CBI, Bangalore
4. It is argued by Sri B.R. Nanjundaiah, the learned Counsel representing the petitioners that the matter is essentially civil in nature and that the compromise arrived at by the petitioners and the respondent 2 before the Debt Recovery Tribunal in O.A. No. 467 of 2000 puts an end to the controversy and that therefore the prosecution of the petitioners would be an abuse of the process of the Court. In this regard, he relies on the observations of the Supreme Court in Central Bureau of Investigation, SPE, SIU(X), New Delhi v. Duncans Agro Industries Limited, Calcutta, wherein civil suits filed by the Banks against debtor-Company for recovery of dues had been compromised on payments by debtor-Company, investigation had not been completed for a long-time in that case and taking into consideration the facts and circumstances of the case, the Supreme Court held that it amounted to compounding of offence of cheating.
5. Sri Ashok Harnahalli, the learned Counsel representing the first respondent argues that any compromise between the petitioners and the second respondent may not put an end to a criminal liability and if ever the parties would like to compound offence, they are at liberty to do so in the Trial Court and that under the pretext of compromising the dispute, the petitioners cannot seek under Section 482 of the Cr.P.C., for quashing of the proceedings.
9. A creditor, who files a complaint alleging cheating by the accused, is not precluded from seeking civil remedy for recovery of the amount advanced. In fact, he will be more interested in recovering his dues rather than in pursuing punitive action. In his endeavour to recover the money, he may enter into a compromise or arrangement for payment by the debtor in installments. That automatically does not result in compounding of the offence.
Thus, compromise and compounding of offence are not one and the same. In order to compound the offence the parties has to arrive at such a conclusion and has to place before the court for compounding.
1968 Crl. LJ 1342 – State of UP Vs Chandrapal Singh
A composition is an arrangement or settlement of difference between victim and accused.
AIR 1965 Cal 469 – Suravi Mukharjee Vs State
Although it is desirable, by way of abundant caution, to insist upon a bilateral agreement the accused persons need not be called upon rigidly to be parties to a compromise petition…
The Hon’ble High Court of Kerala had an occasion to deat with the said proportion of law reported in 2008 Crl. LJ 928 Y.P.Baijlie Vs State of Kerala Wherein it has been held that victim can be permitted to compound the offence in the absence of the accused
9. The language of the provision further indicates very clearly and convincingly that the composition contemplated under section 320 Crl.P.C is a unilateral act and not a bilateral act. Option is given for the person mentioned in column 3 (which a perusal of the tables will show is essentially the victim) to compound the offence. Telltale indications are thus available from the language employed by section 320, Cr.P.C that the composition is and can be a unilateral act on the part of the victim. There is nothing in the language employed by section 320 Cr.P.C. to indicate that the composition contemplated under section 320 Cr.P.C. is a bilateral act.
Sec 320 (2) Crl.P.C.
(2) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the table next following may, with the permission of the court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table:-
In order to get an offence compounded there are three acts to be complied with.
1. Proposal by accused
2. Consent of victim
3. Permission of court
There are some malicious prosecution among various cases. We cannot say all the prosecutions are genuine and so victim alone can be permitted to come to the court to compound the offence behind the accused. Unless, proposed by accused the victim cannot compound the offence.
Damodar S.Prabhu Vs Sayed Babalal – 2010 (2) RCR Crl. 851
Held that …if the accused is willing to settle (or) compromise by way of compounding of the offence at a later stage of litigation, it is generally indicative of some merit in the complaint in case.
Like the same if victim comes to the court to compound the offence behind back of accused, there may not be genuineness in the complaint that is why there must be proposal and acceptance and then only compounding of offence will arise.
1. In Ruchika Sawhney M/s.Landmark apartment private limited
2. M/s. Meters and instruments Pvt Ltd case
In cases arising out of Section 138 of Negotiable Act in the absence of consent by one party the court in the interest of justice on being satisfied that the complainant has been duly compensated, in its discretion can close the proceedings.
CONCLUSION :-
It is the court even in the non compoundable offence can permit the parties to compound the offence and proceedings may also be quashed. Thus, as discussed above in order to have effective compounding of offences the court has to be insist for the presence of both the accused and victim.