COMPOUNDING A NON-COMPOUNDABLE OFFENCE : JUDICIAL

PRAGMATISM : NEITHER ACTIVISM NOR ABSOLUTISM

I Statutory provisions
SECTION 320 of the Code of Criminal Procedure 1973 (hereinafter referred to as
"the Code") enlists offences which may be compounded by persons aggrieved,
and some oi these offences may be compounded only with permission of the court
before which prosecution is pending. It is thus clear that only those offences can
be compounded, either with or without permission of a court, which find a specific
mention in the tables given in section 320. The corollary of this situation is that
all those offences which are not mentioned in the tables in section 320 (I) are
beyond the scope of compromise and cannot be compounded.
The offences which may be compounded straightaway by parties, without
permission of court, are given in section 320 (1) of the Code as per Table I below:
Section 320(9) of the Code specifically and unequivocally provides: "No

TABLE I

Offence Section of the Person by wluim offence

Indian Penal may be compounded
Code applicable

Uttering words, etc., with deliberate
intent to wound the religious feelings
of any person
Causing hurt
Wrongfully restraining or
confining any person
Assault or use of criminal
force
Mischief, when the only loss of
damage caused is loss or damage
to a private person
Criminal trespass
House trespass
Criminal breach of contract of service
298 The person whose religious feeling
are intended to be wounded
323, 334 The person to whom the hurl is caused
341, 342 The person restrained or
confined
352, 355, 358 . The person assaulted or to
whom criminal force is used
426, 427 The person to whom the loss
or damage is caused
447 The person in possession of
the property trespassed upon
448 Ditto
491 The person with whom the
offender has contracted

Adultery 497 The husband of the woman

Enticing or taking away or detaining 498 Ditto
with criminal intent a married woman
Defamation, except such cases as are 500 The person defamed
specified against Section 500 of the
Indian Penal Code (45 or 1860) in
Column 1 of the Table under
suh-section (2)

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Printing or engraving matter, 501 Ditto

knowing it to be defamatory
Sale of printed or engraved 502 Ditto
substance containing defamatory
matter, knowing it to contain
such matter
Insult intended to provoke a 504 The person insulted
breach of the peace
Criminal intended except when 507 The person intimidated
the offence is punishable with
imprisonment for sever years
Act caused by making a person 508 The person against whom the
believe that he will be an object offence was committed
of divine displeasure

Section 320(2) of the Code furnishes another table of offences under the IPC.
which may, with the permission of court, be compounded. The offences are set out
in Table II below:
TABLE II

Offence Section of the Person by whom offence max be

Indian Penal compounded
Code applicable

Voluntarily causing hurt by dangerous 324 The person to whom hurt is caused
weapons or means
Ditto
Voluntarily causing grievous hurt 325
The person to whom hurt is caused
Voluntarily, causing grievous hurt on 335
grave and sudden provocation
Causing hurt by doing an act so 337
Ditto
rashly and negligently as to endanger
human life or personal safety of others
Causing grievous hurt by doing an 338
Ditto
act so rashly and negligently as to
endanger human life or the personal
safety of others
Wrongfully confining a person for 343 The person confined
three days or more
Ditto
Wrongfully confining for ten or more days 344
Ditto
Wrongfully confining a person in secret 346
The woman assaulted to whom the
Assault or criminal force to woman with 354
criminal force was used
intent to outrage her modesty
Assault or criminal force in attempting 357 The person assaulted or to whom the
wrongfully to confine a person force was used

Theft, where the value of property stolen 379 The owner of the property stolen
does not exceed two hundred and fifty
rupees

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19971 COMPOUNDING A NON-COMPOUNDABLE OFFENCE 439

Theft by clerk or servant of property in 381 Ditto

possession of master, where the value of
the property stolen does not exceed two
hundred and fifty rupees
Dishonest misappropriation of property 403 The owner of the property
misappropriated
Criminal breach of trust, where the value 406 The owner of the property in respect
of the property does not exceed two of which the breach of trust has been
hundred and fifty rupees committed
Criminal breach of trust by a carrier, 407 Ditto
wharfinger, etc., where the value of the
property does not exceed two hundred
and fifty rupees
Criminal breach of trust hy a clerk or 408 Ditto
servant, where the value of the property
does not exceed two hundred and fifty
rupees
Dishonestly receiving stolen property, 41 1 The owner of the property stolen
knowing it to be stolen, when the value
of the stolen property does not exceed
two hundred and fifty rupees
Assisting in the concealment or disposal 414 Ditto
of stolen property, knowing it to be
stolen, where the value of the stolen
property does not exceed two hundred
and fifty rupees
Cheating 417 The person cheated
Cheating a person whose interest the 418 The person cheated
offender was bound, either by law or
by legal contract, to protect
Cheating by impersonation 419 Ditto
Cheating and dishonestly inducing 420 Ditto
delivery of property or the making,
alteration or destruction of a valuable
security
Fraudulent removal or concealment of 421 The creditors who are affected
property, etc., to prevent distribution thereby
among creditors
Fraudulently preventing from being 422 Ditto
made available for his creditors a
debt or demand due to the offender
Fraudulent execution of deed of transfer 423 The person affected thereby
containing false statement of
consideration
Fraudulent removal or concealment of 424 Ditto
property
Mischief by killing or maiming animal 428 The owner of the animal
of the value of ten rupees or upwards

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Mischief by killing or maiming cattle, 429 The owner of the cattle or animal
etc., of any value or of any other animal
of the value of fifty rupees or upwards
Mischief by injury to work of irrigation by 430 The person to whom the loss or
wrongfully diverting water when the only damage is caused
loss or damage caused is loss or damage
to a private person
House-trespass to commit an offence 451 The person in possession of the house
(other than theft) punishable with trespassed upon
imprisonment
Using a false trade or property mark 482 The person lo whom loss or injury is
caused by such use
Counterfeiting a trade or property mark 483 The person whose trade or property
used by another mark is counterfeited
Knowingly selling, or exposing or 486 Ditto
possessing for sale or for manufacturing
purpose, goods marked with a counterfeit
property mark
Marrying again during the lifetime of a 494 The husband or wife of the person so
husband or wife marrying
Defamation against the President or the 500 The person defamed
Vice-President or the Governor of a
State or the Administrator of a Union
Territory or a Minister in respect of his
conduct in the discharge of his public
functions when instituted upon a
complaint made by the Public
Prosecutor

Uttering words or sounds or making 509 The woman whom it was intended
gestures or exhibiting any object to insult or whose privacy was
intending to insult the modesty of intruded upon
a woman or intruding upon the
privacy of a woman

offence shall be compounded except as provided by this section1'.

Section 320 of the Code corresponds to section 345 of the old Code of 1898.
Section 345 (1) of the Code lists 21 Indian Penal Code (IPC) offences which may
be compounded by the specified aggrieved party without the permission of the
court and sub-section (2) lists 36 other such offences which may also be com-
pounded but with the permission of the court.
The offence under section 498-A of the IPC was inserted by section 6 of the
Criminal Law (Second Amendment) Act 1983 by way of a separate chapter XX-
A. The said section relates to cruelty by a husband or relatives of husband of a
woman subjecting her to cruelty, which is made punishable with imprisonment
for a term which may extend to three years and shall also be liable to fine. It is
thus clear that this offence was brought on the statute book almost a decade after
amendment of the Code in 1973. However, section 320 of the Code remained
unamended insofar as the offences under sections 498-A and 406, IPC (in the
case of latter offence, where the value of property exceeded Rs. 250). were

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1997] COMPOUNDING A NON-COMPOUNDABLE OFFENCE 441

concerned. The most common cases which come to courts for quashing are those
under sections 498-A and 406, IPC which result due to matrimonial disputes
between spouses. Since the value of dowry property is always much above Rs.
250, section 406, IPC remains non-compoundable as per the table given in
section 320 of the Code. Sections 406 (exceeding Rs. 250 in value) and 498-A,
IPC do not figure in the said tables, so that they cannot be compounded between
parties even with permission of the trial, appellate or revisional court. Quite
often, cases which are registered under sections 498-A and 406, IPC get sorted
out and compromised out of court with intervention of respectable people and
well-wishers, and parties, as a result of compromise, do not want to prosecute
such matters further. However, the trial court cannot grant permission to com-
pound such offences in view of specific provisions contained in section 320 (9)
of the Code. Similar is the helpless situation of a trial court insofar as cases of
hurt under non-compoundable offences punishable under sections 326 and 307
IPC are concerned.
Similarly, there are many other types of cases like criminal breach of trust and
theft, etc., which section 320 of the Code does not permit to be compounded due
to value of the property involved being more than Rs. 250. The parties may have
amicably settled their disputes and may wish to proceed no further in the matter.
Unless and until prosecutions are dropped/quashed, an accused will continue to
suffer prosecution, and a compromise arrived at between parties outside court will
not come to the rescue of an accused who will continue to face trial till the end.
In all such cases, inherent powers of the High Court under section 482 of the Code
are invoked in order to do complete justice between parties and to put a stop to
abuse of criminal proceedings.
The higher judiciary has been taking a very pragmatic approach in sorting out
such matters with a view to seing that justice is done to parties, and unnecessary
harassment, agony and ordeal of prosecution are avoided.

II Judicial precedents : Supreme Court

In Ramesh Chandra J. Thakurv.A.P. Jhaveri1 the Supreme Court (H.R.Khanna
and Y.V. Chandrachud, JJ.) held that permission granted by the trial court to
compound a compoundable offence1" and also a non-compoundable offence under
section 13 of the Maharashtra Ownership of Flats (Regulation of the Promotion
of Construction, Sale, Management and Transfer) Act 1963 was invalid in its
entirety as the permission for the two offences in question was an indivisible one.
The High Court had suo motu set aside the acquittal recorded by the trial court.
which was based on compounding of a non-compoundable offence, and it had
directed further trial in accordance with law.
In Rajinder Singh v. State (Delhi Administration)2 the Supreme Court (N.L.
Untwalia and P.N. Shinghal, JJ.) granted permission to the parties to compound
the offence under section 325 IPC. However, the other offence of which the

1. 1973 Cri L J 201 (SC).

la. S.420, IPC.
2. AIR 1980 SC 1200.

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conviction had been recorded was one under section 452, IPC which was non-
compoundable. The court in such circumstances maintained the conviction under
section 452, IPC and reduced the sentence to the period already undergone.
In Ramjilal v. State of Haryana* the Supreme Court (D.A. Desai and R.B.
Misra, JJ.) in the Special Leave Petition before it accepted the composition in
respect of the offences (sections 323, 324 and 325 read with 34, IPC) which were
compoundable, keeping in view the chastened attitude of the accused and the
commendable attitude of the injured-complainant. The compromise was accepted
by the Supreme Court during the pendency of the petition, in order to restore
harmony in the society.
In Shakuntala Sawhney v. Kaushlaya Sawhney* the Supreme Court (V.R.
Krishna Iyer and V.D. Tulzapurkar, JJ.(observed:5

The finest hour of justice arrives propitiously when parties, despite

falling apart, bury the hatchet and weave a sense of fellowship or
reunion.... We consider it a success of the finer human spirit over its baser
tendency for conflict.

The Supreme Court in Ram Pujan v. State of Unar Pradesh^ had the occasion
to consider the compromise in case of a non-compoundable offence. In that case.
the appellants had been convicted under section 326 read with section 34, IPC and
also section 323 read with section 34,IPC. The conviction had been confirmed by
the High Court. However, during the pendency of the appeal in the High Court,
the application for compromise*was filed stating that the appellants and the
injured persons belonged to one family and they had amicably settled their
disputes and wanted to live in pectce. The High Court thereupon referred the matter
to the trial court for verification of the compromise. After the compromise had
been verified, the High Court passed the order stating that as the offence under
section 326, IPC was non-compoundable, permission to compound the offence
could not be granted. The High Court, however, reduced the sentence for the
offence under section 326. IPC from four years to two years.
The Supreme Court (P. Jaganmohan Reddy. H.R. Khanna and V.R. Krishna
Iyer, JJ.) held that the major offence for which the appellants had been convicted
was no doubt non-compoundable, but the fact of compromise could be taken into
account in determining the quantum of sentence. The sentence of imprisonment
was reduced to the period already undergone, and the fine of Rs. 1,500 was added
by the Supreme Court. This was how the court had dealt with the matter of
compromise in a non-compoundable offence.
The Supreme Court (A.P. Sen and B.C. Ray, JJ.) in Y. Suresh Bahu v. State
of A.P.1 allowed compromise in a non-compoundable offence, i.e., section 326,

3. 1983 Cri Appeals Reporter 58.

4. (1979)3 SCR 639.
5. Id. at 642.
6. 1973 2 SCC 456.
7. JT 1987 (2) SC 361.

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1997J COMPOUNDING A NON-COMPOUNDABLE OFFENCE 443

IPC. The court termed it as a special case and observed that the said case shall not
be treated as a precedent.
The Supreme Court (B.C. Ray and K. Jagannatha Shetty JJ.) in Mahesh Chand
v. State of Rajasthan* allowed compounding of the offence under section 307, IPC
as a special case. In that case, one of the accused was a practising lawyer. The
counter case arising out of the same transaction had already been compromised.
The court, after examining the nature of the case and the circumstances under
which the offence had been committed, directed the trial court to accord permis-
sion to compound the offence after being satisfied with the compromise agreed
upon.

Ill Judicial decisions: Delhi High Court

In Vinod Bansal v. State9 the Delhi High Court (R.L. Gupta. J.) quashed the
prosecution under sections 380 read with 120-Z?, IPC as the complainant on receipt
of substantial amount, compounded the main offence of trespass. This was done
in exercise of inherent powers under section 482 of the Code.
In Arvind Bhushan Chugh v. Dr. Promilla,10 the Delhi High Court (Usha
Mehra, J.), while quashing the FIR under sections 406/498-A/34, IPC and drop-
ping all proceedings initiated on the basis of the FIR, observed:

The law is meant to do justice and not to force the parties for a protacted
litigation. This Court has inherent power to compound a non-compound-
able offence when the interest of justice so requires. In this case, since the
complaint had arisen out of matrimonial differences which ultimately
have been settled, I see no reason why they should continue with the
criminal cases after they have settled their differences.11

The Delhi High Court (Anil Dev Singh, J.) in Vinod Kumar v. State12 allowed
the compromise in the case under section 307, IPC, after referring to the decision
of the Supreme Court in Mahesh ChandP In the case before the Delhi High Court,
the parties had compromised the matter and petitioner No. 2 had remarried.
Taking into account such circumstances, the court was of the opinion that it will
be in the interest of both the parties if the matter was compounded before the trial
court as that would generate peace and goodwill and would end the litigation
between the parties.
The Delhi High Court (V.B. Bansal, J.) in Sanjay Sandhya v. State14 quashed
the FIR under sections 406, 498-A read with section 34, IPC which was still
pending investigation because the parties had amicably settled their dispute and
agreed for a divorce. Not only the counsel for the parties but the state counsel also

8. AIR 1988 SC 211 i.

9. 45 (1991) DLT57.
10. 48 (1992) DLT 1 12.
11. Id. at 113.
12. IV {1993) Current Criminal Reports 2590.
13. Supra note 8.
14. 54 (1994) DLT 126.

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submitted that the parties having already compromised, the petitioner should not
suffer the agony of trial. The court observed that in view of the compromise, it
was unlikely that the case would result in conviction, and therefore, the ends of
justice required quashing the proceedings,
The Delhi High Court (Vijender Jain, J.) in R.S. Arora v. State]r) quashed the
FIR for the offence under sections 452, 506 and 392 read with section 34, IPC (the
parties were landlord and tenant) which were non-compoundable in view of
section 320 of the Code. The court observed:16
It is true that ... offences which are non-compoundable in relation to the
quashing of such offences, the High Court has to act with great caution
and circumspection but to agree with the arguments of learned counsel for
the State that, those offences which are non-compoundable in view of the
section 320 of the Cr.P.C, the High Court will be without power although
parties have settled their matter amicably, would be to make the provi-
sions of Section 482 of the Cr.P.C. nugatory and ineffective.
In Arun Kumar Vohra v. Ritu Vohra]1 Dalveer Bhandari, J. of the Delhi High
Court quashed the FIR under sections 498-A and 307, IPC lodged by the wife
against her husband as they had amicably settled their dispute, and also keeping
in view the extremely close relationship between the parties and interest of the
minor children. Reference was made in the said judgment to the number of eases
of the Supreme Court and the High Courts on the subject.

IV Judicial decisions : Punjab and Haryana High Court

The Punjab and Haryana High Court (Harmohinder Kaur Sandhu, J.) in
Mohinder Singh v. State of Punjab™ quashed the FIR and other proceedings in the
case under sections 307/326/324/323/148 and 149, IPC. There were cross cases
between the parties. The ill-will between the parties had completely vanished and
they had been living peacefully for the last 16 months since the case was
registered. Challan had not been filed in court. The court observed that from the
compromise deeds and affidavits furnished on record, it was made out that the
parties were no longer at daggers drawn, and whatever dispute there was which
resulted in the incident, had been settled amicably. The court observed that though
some of the offences mentioned in the FIR were not compoundable. yet courts
always lean in favour of compromise even in cases which are not compoundable.
The factors persuading the court to quash the proceedings in the said case were
that none of the injured suffered any grievous injury or remained as indoor patient;
that the occurrence had taken place a long time ago; that challan had not been
presented against the parties and chances of conviction were bleak.
In Nand Lai v. State of Haryana™ the Punjab and Haryana High Court (P.K.
Jain, J.) referred to the judgments of the Supreme Court and the High Courts and

15. 1995 AIHC 2769 (Delhi).

16. Id. at 2770.
17. 1995 (2) Recent Criminal Reports (Recent CR) 76.
18. 1993 (2) Chandigarh Criminal Cases (CC Cases) 444 (HC).
19. 1996 (3) CC Cases 82 (HC).

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19971 COMPOUNDING A NON-COMPOUNDABLE OFFENCE 445

granted permission to compound offences under sections 498A/406/506 and 34,

IPC to meet the ends of justice as the criminal charge lost its objective on reaching
an amicable settlement between the parties. The matrimonial disputes between the
parties including those contained in the FIR in question had been amicably settled,
and as a result of conciliation, the wife along with her children had gone to the
matrimonial home. The court observed that in view of the reconciliation between
the parties, it would be an exercise in futility to file a challan in court and to
proceed with the trial. In the larger interest of justice, it was considered just and
proper not to drag the parties to face trial on a criminal charge which had lost its
objective.
The Punjab and Haryana High Court (Swatanter Kumar J.) in Samjeet Kumar
v. Teja Singh20 granted permission to compound the offences under sections 498A/
406, IPC, which were non-compoundable offences, and the criminal proceedings
were quashed in the interest of justice, and it was observed that in view of the
settlement between the parties, it will serve no purpose if the parties were
permitted to litigate for rest of their life purposelessly, specially when the
marriage between the parties had already been dissolved by the decree of the
competent court.
In Hanesh Kumar Narang v. Union Territory of Chandigarh21 Punjab and
Haryana High Court (V.K. Jhanji, J.) quashed the FIR under sections 406 and 498-
A, IPC as a result of compromise between the parties and the dissolution of their
marriage observing that no useful purpose would be served by continuing with
criminal proceedings.
In Mahant Kesar Dass v. Gurdev Singh alias Gurdev Dass12 Punjab and
Haryana High Court (Swatanter Kumar, J.) observed that the real test laid down
by the Supreme Court for permitting invocation of inherent powers under section
482 of the Code is to prevent abuse of process of court or otherwise to secure ends
of justice. The High Court in that case was dealing with the order arising from the
proceedings under sections 145 and 146 of the Code.
The Punjab and Haryana High Court (K.K. Srivastava J.) in Hardev Singh v.
State of Punjab2* quashed the FIR and the consequential proceedings including
the charges framed against the petitioner under sections 323/427/452/356/506
read with section 34,IPC as the parties had arrived at the settlement during the
pendency of the case. It was observed that no useful purpose will be served in
permitting such proceedings to continue further.
In Gurminder Singh v. State of Punjab24 the Punjab and Haryana High Court
(V.K. Jhanji, J.) quashed the FIR for offences under sections 448, 457, 380, 506/
34,IPC. After the registration of the case, the aggrieved party was not interested
to pursue the case against the petitioner. Quashing the proceedings, it was
observed that if the complainant was not going to support the case of the
prosecution, no useful purpose would be served in case criminal proceedings are

20. 1996 (3) CC Cases 73 (HC)

21. 1996 (1) Recent CR 550.
22. 1996 (1) Recent CR 697.
23. 1996 (1) CC Cases 149 (HC).
24. 1996 (1) CC Cases 349 (HC).

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446 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 39 . 2 - 4

allowed to continue.
In Karnail Singh v. State of Punjab25 the Punjab and Haryana High Court
(V.K. Bali, J.) allowed the petition under section 482 of the Code by quashing the
prosecution under section 477-A, IPC (falsification of accounts — a non-com-
poundable offence). The facts in the said case were that the charges under sections
406, 420, 109, 120-£ and 477-A, IPC were framed against the petitioner. The
petitioner was a partner alongwith the complainant. The partnership firm had an
account with the bank. As a result of dispute between the parties, the business of
the firm was stopped. The petitioner got the crossed bank draft for Rs. 30,873
which could be adjusted only in the accounts of the firm. However, the petitioner
opened the account in another bank by alleging himself to be the sole proprietor
of the firm, and the amount of the bank.draft was withdrawn by him for his
personal use. During the course of the trial, the application was moved before the
trial court praying that the offence under section 477-A, IPC may be allowed to
be compounded. The said application was dismissed by the trial court.
The High Court while quashing the proceedings, observed that the parties had
patched up all their differences, and if they had compromised and the matter still
lingered on, it would not only waste the time of the parties but also of the court
in going through a mock trial. The only other way for the parties in the case would
be that the witnesses do not support the prosecution version, ultimately resulting
in the acquittal of the petitioner. It was observed that in some such exceptional
cases, even though the offence may not be compoundable, the High Court in its
power under section 482 of the Code, can also quash the FIR or complaint as the
case may be. Reference was made to the decision of the Supreme Court in Mahesh
Chand v. State of Rajasthan26 wherein an offence under section 307, IPC was
allowed to be compounded.

V Judicial decisions: other High Courts

The Rajasthan High Court (G.K. Sharma, J.) in Kailash Chandra v. Basant'r1
allowed the petition under section 482 of the Code and directed the trial magistrate
to permit the parties to compound the offences under sections 498-A and 120-/3,
IPC, observing that the parties had been living as husband and wife for the last
more than 7 months and were leading a happy marital life.
The Rajasthan High Court (R.S. Verma, J.) in State of Rajasthan v. Gopal
Lal2H declined leave to appeal to the State against the judgment of acquittal for
the offence under section 498-A, IPC on the basis of compromise between the
parties. The High Court observed that the learned magistrate had acted wisely in
permitting the parties to compound the offence who had started living amicably
and the wife had compounded the offence of matrimonial cruelty. If the case
would have been allowed to proceed, it would have led to further ill-will between
the wife on the one hand and her husband and in-laws on the other hand. The court

25. 1996 (2) CC Cases 244 (HC).

26. Supra note 8.
27. 1989 (3) Crimes 676.
28. 1992 Cri L J 273.

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1997] COMPOUNDING A NON-COMPOUNDABLE OFFENCE 447

expressed its surprise as to why the State had at all filed the petition for leave to
appeal when the matter had amicably been settled between the parties. It did not
behove the state to act in too technical a manner in such matter. The court
observed that reopening of the dispute was' bound to create a storm in the calm
waters of domestic felicity between husband and wife, a situation which the state
should like to create. The High Court opined that it was high time that the
legislature should consider whether an offence under section 498-A, IPC should
not be included in the list of offences under section 320 of the Code.
The Rajasthan High Court (V.S. Dave, J.) in Sri Narain v. State of Rajasthan29
held that trial courts have no jurisdiction, express or implied, to record a compro-
mise in a non-compoundable case, but the High Court and Supreme Court have
inherent powers to pass any order under the Code to secure the ends of justice. In
that case the non-compoundable offence was one under section 326, IPC. The
complainant-injured and the accused were close relations living in the same
village and they had patched up all their differences and disputes and filed the
compromise petition. There was the cross case for offences under sections 325 and
323, IPC in which also, compromise had been reached. The magistrate being not
competent to accord permission to compound a non-compoundable offence,
sought guidance and made a reference to the sessions judge who informed him that
a magistrate had no power to accord permission to compound such an offence. The
High Court held that when the parties are very close relations and the offences are
very old or they are matrimonial offences and no grave damage has been caused
and it does not involve a very serious offence like that of murder, dacoity, arson,
rape etc., if the ends of justice so desire, the High Court can always invoke its
jurisdiction under section 482 of the Code. The court further observed that a
compromise should be permitted in a fit case in order to save time, money and
energy of litigants as well as of court. Even otherwise, not to allow compromise
may also result in such circumstances to the same end because a complainant in
that case would not support the prosecution story, and a court, instead of advanc-
ing the cause of justice, would encourage perjury, and if this is not done, a trail
of evil thoughts will again start in minds of parties for having another innings of
battle. Such cases must, therefore, be given a decent burial as it is not purposeful
in continuing a dead horse.
The Division Bench of the Karnataka High Court (D.P. Hirenath and K.
Ramachandraiah JJ.) in State of Karnataka v. Basavaraju™ upheld the order of the
trial magistrate granting permission to compound the offence under section 498-
A, IPC and consequent acquittal, and refused leave to appeal sought by the state
against the judgment of acquittal.
The Bombay High Court (B.U. Wahane J.) in Suresh Nathmal Rathi v. State
of Maharashtra^ allowed the petition under article 227 of the Constitution of
India seeking a direction to the judicial magistrate to allow the parties to com-
pound offences under section 498-A read with section 34, IPC. The court observed
that there was no dispute left between the parties and the complainant was leading
a happy married life with her husband-accused. It was observed that if the
29. J1 (J994) Current Criminal Reports 1151.
30. ILR 1990 Karn 774; 1990 (2) Crimes 196.

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448 JOURNAL OF THE INDIAN LA W INSTITUTE [ Vol. 39 : 2 - 4

permission sought for to compound the offence was not considered, there would
be a destruction of the married life and they would not prolong well in the eyes
of the society. If the hanging sword is over the neck of the husband as well as the
old mother and the brothers, the relations may again become strained and there
would be a destruction of the happy life of the spouses. It may be that at one point
of time, the husband and the relations had committed some undescribed act, but
subsequently, the facts reveal that they repented and ultimately, all were happy.
Under these circumstances, it would bot be desirable to reject the prayer made by
the petitioners and to disturb their happy life.
The High Court of Bombay observed that there were some compoundable
offences specified in section 320 of the Code where the quantum of sentence was
much more than under section 498-A, IPC, and inspite of that, the offence under
section 498-A, IPC was not compoundable even with the permission of the
magistrate. The High Court proposed an amendment of section 498-A, IPC to
make it compoundable and bailable, in the interest and welfare of the married
couples and the society. As it was the jurisdiction of the legislature, the Govern-
ment of Maharashtra was required to pursuade the Government of India to
introduce necessary amendments to section 498-A, IPC and section 320 of the
Code.
The Orissa High Court (L. Rath, J.) in Md. Khalilur Rahaman v. State of
Orissa3*2 quashed the proceedings under section 294, IPC (obscene acts and songs.
punishable with imprisonment for 3 months or fine or both) pending against the
husband on the ground that the disputes between the parties had subsided long
back and they had even been divorced and that continuance of prosecution against
the husband would not achieve any beneficial result nor would it be in aid of
achieving any social or public justice which is the main aim of a criminal
prosecution. The court observed that a High Court not could be powerless to stifle
a prosecution at the commencement if a prosecution ex facie appeared to be an
abuse of the process of the court, and continuance thereof degenerated itself to be
a weapon of harassment. The proceedings were quashed as continuance of the
prosecution would not achieve any tangible result.
The Andhra Pradesh High Court (Bhaskar Rao, J.) in Thathapadi
Venkatalakshmi v. State of Andhra Pradesh33 allowed the revision petition and
directed the trial court by exercising its powers under section 482, CrPC to accord
permission to compound the offence under section 498-A, IPC after examining the
parties in court and after being satisfied about the voluntary nature of the
settlement. The court observed that the basic object of any matrimonial law is to
facilitate a happy and harmonious married life between the spouses and, therefore.
keeping in view the larger interest of the parties and to secure the ends of justice,
the parties could be accorded permission to compound the offence in question.
The Division Bench of Andhra Pradesh High Court (Radhakrishna Rao and
S.V. Martuthi, JJ.) in Daggupati Jayalakshmi v. The State34 observed that com-

31. 1992 Cri L J 2106.

32. 1989 Cri L J 1845.
33. 1991 Cri L J 749.
34. 1993 Cri LJ 3162.

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1997 J COMPOUNDING A NON-COMPOUNDABLE OFFENCE 449

pounding of the matrimonial offence under section 498-A, IPC was permissible,
and only the High Court in exceptional circumstances can permit compounding of
such a non-compoundable offence under its inherent powers. The High Court
observed that it cannot be said that a court has to exercise its inherent powers and
allow non-compoundable offences to be compounded simply because the parties
have compromised the matter. The relationship between the parties, the back-
ground of the case, the effect of the couple being re-united and the effect on their
children are all matters which have to be taken into consideration while exercising
inherent powers. Where it is proved beyond doubt that compromise is to the
benefit of the couple and compounding the offences would restore normalcy
between the parties, the courts must rise to the occasion of creating a healthy
atmosphere between the couple by exercising inherent powers. However, the
Division Bench, expressing the general view, was of the firm view that in case of
non-compoundable offences in general, a High Court has no power to permit the
parties to compound the same.
VI Contrary view
The Division Bench of Karnataka High Court in State of Karnataka v. H.S.
Ravanasiddappa35 held that subordinate criminal courts or the High Court has no
power to grant permission to compound a non-compoundable offence, i.e., an
offence which does not come within either of the two tables under section 320 (1)
and (2) of the Code. The orders of the trial court permitting the composition of
the offences in two cases, one under section 326, IPC and the other under section
380, IPC were held to be non-sustainable, and consequently, acquittal was set
aside and the matter was remanded for trial in accordance with law. The Division
Bench observed, while referring to the judgment of the Supreme Court in Mahesh
Chand v. State of Rajasthan,36 that the powers of the Supreme Court under article
142 to do complete justice in any matter pending before it, is not restricted by
sections 320. 321, 482 of the Code or all of them put together. The said power
under article 142 was not subject to statutory prohibition and in particular, to
section 320(9) of the Code. The decision in Mahesh Chand by the Supreme Court,
therefore, rested on the plenary jurisdiction under article 142 of the Constitution.
Reference was made by the Karnataka High Court to the judgment of the
Supreme Court in Biswabahan Das v. Gopen Chandra Hazarika31 wherein it was
observed:
[I]f a person is charged with an offence, then unless there is some
provision for composition of it, the law must take its course and the
charge inquired into resulting either in conviction or acquittal. 38
Reference was also made to the judgment of the Karnataka High Court in State
of Karnataka v. Basavaraju.39 The accused therein had been prosecuted for the

35. 1994 Cri L J 2928.

36. Supra note 8.
37. 1967 Cri L J 828.
38. Id. at 831.
39. ILR 1990 Karn 774; 1990 (2) Crimes 196.

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450 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 39 : 2 4

offence under section 498-A of the IPC. The parties sought permission to com-
pound the said offence. The trial magistrate found that it was eminently a fit case
to grant permission and hence granted permission to compromise. The State
challenged the correctness of the said order. The Division Bench of the Karnataka
High Court observed that permission to compound a non-compoundable offence
should not be granted as a matter of course unless there were peculiar circum-
stances and the case could be said to be a special one. The High Court observed
that the trial court had kept in its view the welfare of the parties in the matrimonial
home and did not want the feelings between the parties to be strained for the rest
of their life. Keeping in view the larger interest of the couple and its impact on
the society, the trial court had accorded the permission, and the High Court held
that the trial court did not commit any error in doing so.
The aforesaid decision of the Division Bench of the Karnataka High Court in
Basavaraju was opined to be a decision given per incuriam and, therefore, it was
not binding.
The Full Bench of the Rajasthan High Court (K.C. Agarwal, C.J.. M.B.
Sharma and N.L. Tibrewal, JJ.) in Mohan Singh v. State,4() held that permission
to compound an offence which was not compoundable under section 32()( 1) or
320(2) of the Code cannot be granted by the High Court in exercise of its inherent
powers under section 482 of the Code. It was observed:41

Though the powers possessed by the High Court under section 482
Cr.P.C. are very wide, but the very plenitude of the power requires from
the court great caution in the exercise of it.

In that case, the petitioner had been convicted by the trial court under section
326, IPC and sentenced. During the pendency of the appeal in the Court of
Sessions, the parties compromised and filed a joint petition but permission to
compromise was declined on the simple ground that the offence was not com-
poundable under section 320, CrPC. The accused and the injured, therefore, filed
the petition under section 482, CrPC before the High Court with a prayer to direct
the lower appellate court to permit them to compound the offence under section
326, IPC. The learned single judge, hearing the petition, disagreeing with the
earlier decision of the Single Bench of the Rajasthan High Court in Hari Narain
v. State of Rajasthan,42 referred the matter to a larger Bench, and a Full Bench
of three judges was constituted.
It was held that the inherent powers of the High Court under section 482 of
the Code should not be exercised as against the express bar of law engrafted in
any other provision of the Code. It was held that the High Court has thus no power
under section 482, CrPC to permit the composition of an offence which was a non-
compoundable offence.

40. 1993 Cri L J 3193.

41. Id. at 3196.
42. 1989 R C C 335.

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1997] COMPO UNDING A NON- COMPO UNDA BLE OFFENCE 45 I

VII Law Commission : Reports and recommendations

The Law Commission of India43 came to the conclusion that it was not
feasible to formulate any general rule for determining compoundable offence. The
suggestion to evolve a general rule to determine compoundability of offence by
relating it to the punishment provided for the offence, was not accepted. The broad
principle that forms the basis of the present scheme is that where the offence is
essentially of a private nature and relatively not serious, it is compoundable. The
Commission observed that a rule to the effect that an offence will be compound-
able if the maximum punishment provided is not more than 3 years imprisonment
will, no doubt, be definite but will not, in its opinion, be suitable.
The suggestion to abolish the requirement of seeking permission of court in
respect of offences specified under section 345(2) of the old Code did not appeal
to the Commission, and it observed that the safeguard of the court's permission
was to prevent an abuse of the right to compound and to enable the court to take
into account the special circumstances of the case which may justify composition.
In respect of offences listed under section 345(1) of the old Code, such a safeguard
was not required.
Under the Second Schedule to the Code, all offences under special laws are
non-compoundable. The Law Commission was of the opinion that it was for the
legislature to decide as a matter of policy whether and to what extent, offences
under the special laws should be compoundable and it was not desirable to make
any general provision in the Code touching that point. The suggestion to add
further offences under sections 143 (being member of unlawful assembly), 147
(rioting), 209 (false claim in a court of justice), 210 (fraudulently obtaining
decrees), 279 (driving or riding on a public way so rashly or negligently as to
endanger human life), 304A (causing death by rash or negligent act). 326 (causing
grievous hurt by dangerous weapon), 347 (wrongful confinement for extortion).
380 (theft in a building), 456 (lurking house-trespass or house-breaking by night),
457 (the same in order to commit an offence) and 495 (bigamy with concealment)
in the compounding list, was turned down by the Law Commission observing that
public peace, order and security are matters in which society is vitally interested.
and offences which jeopardise them ought to be suitably punished by the courts
and should not be left to be compounded by the person directly aggrieved by the
offence.
The Law Commission made the suggestion that an offence under section 354.
IPC, should, with the permission of the court, be compoundable by the woman on
whom the assault is committed or against whom criminal force is used. The
Commission also recommended that offences under section 411 (receiving or
retaining stolen property) or section 414, IPC (assisting in the concealment or
disposal of stolen property) should be compoundable with the permission of the
court, if the value of the property does not exceed Rs. 250.
The suggestion to include offences under sections 354, 41 1 and 414. IPC in
the compounding list was accepted and incorporated in the statute, and they find

43. Forty First Report on the Code of Criminal Procedure IS98 (Sept. 1969).

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452 JOURNAL OF THE INDIAN LA W INSTITUTE j Vol . 3 9 : 2 - 4

mention in section 320(2) of the Code.

The offence of theft, where the value of the property stolen does not exceed
Rs. 250 was made compoundable by amendment of the Code in 1955. The
suggestion was made to omit the said offence from the list of compoundable
offences with the permission of the court on the ground that habitual thieves were
taking advantage and escaping punishment. The Commission observed that there
was no harm in making petty theft a compoundable offence with the permission
of the court, and in case of a habitual thief, the prosecution may make a mention
in the chargesheet or point this out to the court when permission lo compound the
offence was sought.
The Law Commission made the recommendation that offence of unlawful
compulsory labour punishable under section 374, IPC should not be made com-
poundable, and this suggestion was accepted and the said offence was omitted
from the list of compoundable offences.
The Law Commission of India 4 4 made recommendations for amendment of
many offences in IPC. The fascicle of sixteen sections (425 to 440, IPC) deal with
the offence of mischief in varied forms. A light punishment of imprisonment upto
three months or fine or both is provided in section 426 for the ordinary offence
of mischief when none of the aggravating circumstances specified in the subse-
quent sections exist. Aggravations are based on value of the damage caused, 4 ^
nature of the property damaged, 4 6 the method adopted to cause damage, 4 7 other
criminal motives influencing the act 47 " and, of course, a combination of these
aggravating circumstances. The maximum sentences provided for the various
offences are three months, one year, two years, five years, seven years, ten years
and life. The Law Commission proposed a closing up and reduction of this
spectrum of offences and punishments. It also proposed to raise the minimum
value of the animal from Rs. 50 to Rs. 200.

VIII Suggestions for reforms

The ultimate purpose of every law is to do justice between parties. The current
penological trend and thought is to impress upon parties to settle their disputes
amicably and the underlying purpose behind this approach has not only been to
reduce arrears of cases but also to bring about feelings of brotherhood and
friendliness so as to restore peace in society. There are oi course certain offences
which affect the vital interests of society, and, therefore, compromise in such
cases cannot be countenanced favourably. However, there are many offences
which can safely and without endangering society, be allowed to be compounded
with permission of the court but such offences do not find a mention in the present
compounding lists in section 320 of the Code. The fixation of value of property

44. Forty Second Report on the Indian Penal Code (June 1971).
45. S. 427.
46. S. 428,434.
47. Ss. 435-438.
Ala. Ss. 439, 440.

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1997) COMPOUNDING A NON-COMPOUNDABLE OFFENCE 453

at such low amount as Rs 1048 Rs 5048'1 and Rs 250 49 is completely outdated and
antiquated and out of tune compared to the constantly declining value of money.
Such valuation may have been appropriate in 1860 when IPC was drafted. It is.
therefore, unnecessary to fix any value of any animal or cattle for purposes of
compounding an offence relating to mischief.
So far as offence of cheating punishable under section 420, IPC is concerned,
the same is compoundable by virtue of section 320(2) of the Code irrespective of
the amount involved in cheating. However, the offences of theft,50 criminal breach
of trust,5' receiving stolen property52 are compoundable only when the value of
property involved docs not exceed Rs 250. The amount in the present times is
ridiculously low and needs to be revised. One may not get even a pair of shoes for
the paltry sum of Rs 250 and if that be so, offence of theft of shoes remains non-
compoundable. It may be worthwhile considering whether any upper ceiling needs
to be retained at all, particularly when no limit is prescribed in the offence of
cheating.
When any new offence like the one under section 498-A, IPC is brought on
the statute book, its compoundability ought to be examined, appreciated and
legislated in proper perspective. So far as the matrimonial offences under sections
498-A and 406, IPC are concerned, the practical experience presents a sad
spectacle. It has been agonisingly found that some of the disgruntled ladies, then-
parents and family members resort to misusing these provisions against their in-
laws so much so that even minor members of the family of the husband are roped
in with allegations of making dowry demands and causing harassment and cruelly
to the wife. Often, it is experienced that a wife ropes in all and sundry members
of the family of her husband including those who have been living apart. Viewed
in this context it is absolutely essential, urgent and imperative that the legislature
must hasten lo step in and correct the malady. A preliminary investigation of
^legations made by a wife may be made compulsory before registration of an FIR.
And such offences must be made bailable so that innocent family members are not
put to humiliation and harassment of detention in lock-up and jail.
Such offences need to be made compoundable because quite often, couples
come to terms after some aberrations and they decide to live together and lead a
normal matrimonial life. However, if the offence continues to be non-compound-
able, despite the parties having arrived at a mutual settlement, litigation will go
on, dragging parties to appearances in witness box and dock in courts. This is
neither matrimonially advisable nor socially desirable.
There have been observations and recommendations made by the High Court
of Rajasthan and Bombay53 for bringing about necessary legislative amendments
in section 498-A, IPC and section 320 of the Code. It is hish time that Parliament

48. s. 428, IPC.

AXa. S. 429, IPC.
49. Ss. 379, 381, 406, 407, 408, 41 1 and 414, IPC.
50. Ss. 379 and 381.
51. Ss. 406, 407 and 408, IPC.
52. Ss. 411 and 414, IPC.
53. See. supra at 447-48.

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454 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 39 : 2 - 4

passes necessary amendments in sections 498-A and 406, IPC so as to make these
offences bailable, and also section 320 of the Code to make them compoundable
with permission of the court.
The question is what can be done till the law is amended, as at present, parties
have to approach the High Court under section 482 of the Code, for quashing the
proceedings after they have mutually sorted out their differences either by way of
a divorce or reunion. Firstly, approaching the High Court is quite expensive as it
entails a fresh round of litigation. Secondly, quashing takes its own time and
procedural formalities have to be complied with. Thirdly, the High Court may at
times get hyper-technical and decline either permission to compound non-com-
poundable offences or quash the proceedings on the ground that trial will decide
the fate of parties. And in the case of some High Courts like Rajasthan and
Karnataka, a Single Bench will be precedent-bound by its Division Bench and Full
Bench judgments, taking a contrary view to the effect that a non-compoundable
offence cannot be compounded even by exercise of inherent powers by the High
Court.
Under the above scenario, it is expedient and desirable, till the law is suitably
amended by the legislature, that the Supreme Court in an appropriate case may lay
down the guidelines in the matter of compounding of offences, particularly
matrimonial offences. It will be worthwhile considering the grant of such powers
to trial courts as it will save a lot of valuable time of the High Courts and also save
parties from avoidable and unnecessary botheration, expense and anxiety. A trial
court is always well-equipped to decide about voluntariness of settlement between
parties, seized as it is of the matter during trial. With a view to seeing that such
powers granted to trial courts are not abused, the High Court may issue instruc-
tions to send the factual statement of each such case to the court for its apprecia-
tion. In any case, justice must be done to parties who do not want themselves to
be embroiled in further litigation after they have ironed out their differences.

P.R. Thakur*

Advocate, Delhi High Court. Formerly, Additional District and Sessions Judge, Delhi.

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