Compounding: An 'unsettled' approach on the law of settlement

'I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.'[1]

Introduction:

As observed in Murray[2], compounding of an offence signifies 'that the person against whom the offence has been committed has received some gratification, not necessarily of a pecuniary character, to act as an inducement of his desiring to abstain from a prosecution.' In a layman's language compounding of an offence may simply be referred to as the settlement or resolution of dispute/conflict or an altercation amongst the victim/complainant and the accused by arriving at an equitable bargain in accordance with the parties, which can either be oral or written. It is when the victim is prepared to condone the offensive conduct of the accused who has become chastened and repentant. Sec. 320 of the Criminal Procedure Code 1973 articulates the law governing compounding of offences. However as untroubled as it sounds and drafted as unambiguous as the commandments of Christ, the provision entails contradistinctions erupting out of a series of pronouncements of the Hon'ble Supreme Court, the recent being in the matter of State of Madhya Pradesh Vs. Kalyan Singh & Others. [3]

Compounding: The law lexlata

Section 320(1) and Section 320(2) of the Cr.P.C. 1973 engrafts compoundable offences. The respective schedules appended to the respective sub-sections enumerate offences which are compoundable by the persons mentioned along in the table or those which are compoundable with the permission of the court respectively. The express intent of the legislature after making an elaborate mention of the compoundable offences is thatno offence other than that specified in the Section can be compounded[4]. The aforesaid intention can further be inferred from the construction of Section 320(9) of the Cr.P.C., 1973 which states that 'No offence shall be compounded except as provided by this section'.

However, there have been rulings of the Apex Court which allowed composition of offences which were prima facie beyond the scope of law i.e. beyond the ambit of sec. 320, especially under the garb of sec. 482 Cr.P.C., 1973. The most important turnarounds from the law books happen in cases wherein offences such as hurt, grievous hurt, attempt to murder or domestic violence or cruelty are involved because the perpetrators are members of the family.

The cases in the form of a timeline specifically focusing on compounding of offence u/s 307 I.P.C. 1860 have been discussed in the latter part of the article. However, the acts of the judiciary in going beyond the scope of Section 320 of the Cr.P.C., 1973 are indicative of unwarranted judicial outreach under the garb of judicial activism.

The Timeline of Contradictions

With contradicting judgments by different division benches of the Hon'ble Supreme Court, the most recent being the Kalyan Singh Judgment[5], the requirement of a settled law on the issue has picked up pace. Here's how various judgments have unfolded over the period of time:

1. Y. Suresh Babu vs. State of M.P.[6]

In this case, the court held that although the offence under Section 326 is non-compoundable but, since the well-wishers of both sides had intervened and the matter had been compromised, the apex court upheld the composition despite the offence being non-compoundable. However, the court held that this case may not be held as a precedent.

2. Mahesh Chand and Anr. Vs. State of M.P.[7]

Relying on the judgment delivered in the Y. Suresh Babu case[8], the court held that the offence under Section 307 be compounded. The vague contention of the appellants treating the case to be a peculiar one on the ground that the accused was an advocate, was baselessly upheld by the Hon'ble Court.

3. Ram Lal and Anr. Vs. State of Jammu and Kashmir[9]

In this pronouncement the Hon'ble Supreme court dissented from the opinion in the above two decisions and held that:

'It is apparent that when the decision in Mahesh Chand (Supra) was rendered attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was attention of the learned Judges who rendered the decision in Y.SureshBabu (supra) drawn. Hence those were decisions rendered ‘per incuriam'. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. The offence under Section 326 IPC is, admittedly, non-compoundable and hence we cannot accede to the request of the learned counsel to permit the same to be compounded.'

However, the court itself took into consideration the compromise reached between the parties and ordered for the acquittal of the appellant accused.

4. Gulab Das v. State of M.P.[10]

The question of composition of offences under Section 307 was decided again by a division bench in 2011 wherein it was held that:

'In the light of the submissions made at the bar the only question that falls for determination is whether the prayer for composition of the offence under Section 307 IPC could be allowed having regard to the compromise arrived at between the parties. Our answer is in the negative. This Court has in a long line of decisions ruled that offences which are not compoundable under Section 320 of the Cr.P.C. cannot be allowed to be compounded even if there is any settlement between the complainant on the one hand and the accused on the other. Reference in this regard may be made to the decisions of this Court in Ram Lal and Anr. v. State of J & K (1999) 2 SCC 213, and Ishwar Singh v. State of Madhya Pradesh (2008) 15 SCC 667. We have, therefore, no hesitation in rejecting the prayer for permission to compound the offence for which Appellant Nos. 2 and 3 stand convicted.'

5. The Law Commission report[11]- Reiteration of the law

The 237th law Commission report of the Government of India while considering the law of compounding of offences, with special reference to the offences against the human body, recommended that the offence under section 307 of the Indian Penal Code were grave and more serious. In one of the recommendations, it states that:

'6.1 Broadly speaking, the offences which affect the security of the State or have a serious impact on the society at large ought not to be permitted to be compounded. So also, crimes of grave nature should not be the subject matter of compounding. However the policy of law on compoundability of offences is complex and no straightjacket formula is available to reach the decision.'

'Further that no offence other than that specified in the Section can be compounded'

6. Gian Singh vs. State of Punjab[12]

In this case the issue of quashing the proceedings u/s 482 after compromise between the parties despite the offences being non-compoundable in nature came to be settled. The Hon'ble Apex Court ruled that 'offences arising out of matrimony relating to dowry etc. or family disputes where the wrong is basically private or personal in nature and parties have resolved their disputes, the High Court may quash the proceedings u/s 482 of the code.' However in contrast to the position of law laid down in this judgment the Hon'ble Supreme court has perpetually upheld that the inherent powers u/s 482 Cr.P.C. 1973 should not be exercised as against the express bar of law engrafted in any other provision of the Code.[13] Thus, though the inherent powers are declared as not unfettered and unlimited in words are in reality illimitable. Moreover a well known principle of law states 'what cannot be done directly should not be done indirectly.'

7. State of Rajasthan vs. Shambhu Kewat & Anr.[14]

Following the footprints of the abovementioned decisions, the court while allowing the appeal in the present case and rejecting the compromise arrived at by the parties, held that:

We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual, on the other hand it was a crime against the society at large. Why Section 307 IPC is held to be non-compoundable, because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant, just to protect the individual, but the society as a whole. High Court was not right in thinking that it was only an injury to the person and since the accused persons had received the monetary compensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is safety and protection of the people at large and it would be a lesson not only to the offender, but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society at large

8. Narinder Singh &Ors. Vs. State of Punjab[15]

In this case the court while explaining the seriousness and gravity of the offence under Section 307 of the Indian Penal Code held that:

Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307IPC in the FIR or the charge is framed under this provision.

Further taking a harmonious view amongst the line of contrasting judgments, the court held that:

It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307I.P.C. 1860. On the basis of a prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

It is pertinent and ironic to note that the bench of Hon'ble judges which pronounced the judgment in this matter, thereby allowing the composition of the offence on the ground of intervention by 'respected members' of the society was the same which disallowed the composition in Shambhu Kewat's case.[16]

9. State of Madhya Pradesh Vs. Kalyan Singh &Ors.[17]

The issue came for consideration again before Hon'ble Mr. Justice M.R. Shah and Hon'ble Mr. Justice D.Y. Chandrachud wherein they ruled that compounding of offences beyond the scope of Section 320 would be held to be bad in law.

Relying on the Gulab Das Case, the court held that:

"This Court has in a long line of decisions ruled that offences which are not compoundable under Section 320 of the Cr.P.C. cannot be allowed to be compounded even if there is any settlement between the complainant on the one hand and the accused on the other." 

Further holding the decision of the High Court to be against the spirit of the law it stated that:-

"Looking to the serious allegations against the accused, we are of the opinion that the High Court has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original Complainant and the accused have settled the dispute."

Concluding remarks:

There has been no settled position with reference to this area of law as time and again, there have been varied approaches by the Hon'ble Apex court of the country.On one hand, the resolution approach talks about bringing an end to the litigation by bypassing the statutory law and allowing the compounding of offences. On the other hand, the punitive approach rightly holds that the legislature had given a proper thought to offences that have been categorically stated to be non-compoundable and hence any compounding beyond the radius of Section 320 should be and is rightly prohibited under the law, however powers u/s 482 of the Cr.P.C., 1973 can be exercised in the arena despite there being an express prohibition in the code for such compounding is incongruous. With the issue under consideration becoming an ambiguous blackhole of brow-raising decisions, each of them being correct from a different point of view, this question rightly requires consideration by a larger bench of the court to coat up a layer of simplicity over the rusted complexity which stays alive due to sharply contrasting opinions of the Apex body. 

The authors can be reached at siddhantgrover12@outlook.com.The authors wish to thank Mr. Akshay Jain for his valuable contributions.

[1]Massachusetts v. United States, 333 U.S. 611, 639-40 (1948) (Jackson, J., dissenting).
[2] (1894)21 ILR 103 at 112
[3]2019 SCC Online SC 7
[4]237th Law Commission Report
[5]Supra 3
[6] JT 1987 (2) SC 361, (2005) 1 SCC 347
[7] AIR 1988 SC 2111
[8] Supra 6
[9] (1999) 2 SCC 213
[10](2011) 10 SCC 765
[11] The 237th law commission report, Government of India, December 2011
[12] (2012) 10 SCC 303
[13]State of Punjab vs, Davinder Pal Singh Bhullar and Ors., AIR 2012 SC 364
[14] (2014) 4 SCC 149
[15] (2014) 6 SCC 466
[16]Supra 14
[17] Supra 3

 

Siddhant Grover 
on 04 February 2019
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