A Differing Note on 2006 (3) KLT 49

(By A.K. Radhakrishnan, Jt. Secretary, Advocate General’s Office Ernakulam)

An elaborate scheme has been enumerated under S. 320 of the Code of Criminal Procedure on how to compound the offences under the Indian Penal Code. The first table under S. 320(1) Cr.P.C stipulates the offences that can be compounded by the parties concerned without the permission of the Court whereas the 2nd table under S.320(2) describes the offences that can be compounded by the parties concerned with the permission of the Court before which prosecution for such offence is pending. It is stated in S.320(6) that a High Court or Court of Session acting in the exercise of its powers of Revision u/s 401 may allow any person to compound the offence which such person is competent to compound under this section. It is clear from S.320(6) that High Court or Sessions Court in its Revisional Power u/s 401 can compound the offences only as provided u/s 320 Cr.P.C. S.320(9) Cr.P.C creates a bar on compounding of offences in any manner otherwise than u/s. 320. It stipulates that no offence shall be compounded except as provided by the section. So, it is the legislative intent that there can be no compounding of offences violating the provisions of S.320 Cr.P.C. There is thus an elaborate Scheme for compounding of offences under S.320 Cr.P.C. 

It is in the light of the various provisions u/s. 320 Cr.P.C. as well as the decisions of the Apex Court in this regard we have to look at the decision rendered in Crl.R.P. 2566/04 reported in 2006(3) KLT 49. The Honourable High Court has held that Court can give permission to compound the offence even if they are non-compoundable, if such offence does not seriously affect the interest of the public at large. The Court allowed the Crl.R.P. and acquitted the accused of all the offences alleged against them u/s. 320(8) Cr.P.C. Thereby the Court acquitted the accused for offences punishable under S.143, 147 and 148 of I.P.C also which are non-compoundable under S.320 Cr.P.C. by considering the fact that the parties have settled the matter among themselves by permitting them to compound those offences which do not affect any one else. The above view of the Honourable Court is against the clear provisions of S. 320 Cr.P.C and the various decisions of the Apex Court in this regard. However, it is true that the fact of compromise in a non-compoundable offence could be taken into account in determining the quantum of sentence.

The Honourable High Court while disposing of the Crl.R.P has referred to the decision reported in ((2003) 4 SCC 675). But in that decision itself the Supreme Court has unmistakably stated that those offences which are not mentioned in S.320 Cr.P.C cannot be permitted to be compounded. The Division Bench of the Apex Court in that decision agreed with the proposition laid down in Surendra Nath Mohanty case ((1999) 5 SCC 238) that offences declared to be un-compoundable cannot be compounded at all even with the permission of the Court. This is what the three Judge Bench of the Supreme Court stated in 1999(5) SCC 238 :- “In our view the submission of the learned Counsel for the respondent requires to be accepted, for compounding the offences punishable under the I.P.C, a complete scheme is provided under S.320 of the Code of Criminal Procedure, 1973. Sub-s.(1) of S.320 provides that the offences mentioned in the table provided there under can be compounded by the persons mentioned in column 3 of the said table. Further, sub-s.(2) provides that the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, sub-s.(9) specifically provides that “no offence shall be compounded except as provided by this Section”. In view of the aforesaid legislative mandate, only the offences which are covered by Table I or Table II as stated above can be compounded and the rest of the offences punishable under the I.P.C could not be compounded”.

In fact in ((2003) 4 SCC 675), what was considered by Supreme Court is whether High Court can by invoking the inherent power u/s 482 Cr.P.C read with Arts.226 and 227 of the Constitution quash criminal proceedings or F.I.R or Complaint alleging offences which includes non-compoundable offences for preventing abuse of the process of any Court or otherwise to secure the ends of justice. In that case on the basis of a complaint from a wife living separately, F.I.R was registered u/s 498-A/ 323 & 406 I.P.C against her husband and in-laws. Thereafter the matter was settled by the parties. But, the High Court dismissed the petition for quashing the FIR for the reason that as S.498-A and 406 I.P.C are non-compoundable, the inherent power u/s 482 Cr.P.C. cannot be invoked to by-pass the provisions of S.320 Cr.P.C. But the apex Court held that High Court in exercise of its inherent power can quash criminal proceedings or F.I.R or complaint and S.320 Cr.P.C doesn’t limit or affect the powers u/s 482 Cr.P.C. Thus it can be seen that the Supreme Court had not in that decision held that offences which are non-compoundable u/s 320 Cr.P.C. can be compounded by High Court by invoking its powers either u/s 482 Cr.P.C., or under Arts.226 and 227 of the Constitution. On the contrary, Supreme Court by way of passing reference agreed with the earlier decision of the Apex Court in ((1999) 5 SCC 238) stated above.

In Ram Lal & Anr. v. State of J. & K. reported in 1999 (1) Supreme 216 also the Apex Court held that in view of the legislative ban u/s.320(9) Cr.P.C., an offence which is non-compoundable cannot be compounded at all. Only such offences as are included in the two tables of S.320 Cr.P.C can be compounded. That was a case in which permission was sought for compounding the offence u/s. 326 I.P.C. which is non-compoundable as per S.320 Cr.P.C.

Bankat & Anr. v. State of Maharashtra (2004 (8) Supreme 338) is yet another decision of the Supreme Court to be noted in this context. In that decision also Supreme Court concurred with the decision in 1999 (1) Supreme 216 and held that the Course adopted in Ram Pujan’s case ((1973) 2 SCC 456) and Mahesh Chand’s case (1990 Supp. SCC 681) was not in accordance with law.

Thus it can be safely concluded that the Apex Court is of the firm view that no offence shall be compounded in violation of S.320(9) Cr.P.C. When the Code stipulates certain procedures for compounding of offences, compounding of offences in violation of those provisions is not allowable. It will be against the legislative mandate. Therefore, the decision reported in 2006 (3) KLT 49 requires reconsideration.

Remembering TCN : A Stalwart

T.P. Kelu Nambiar, Sr. Advocate

This remembrance is the result of the realisation of the meaning of the maxim, “better late than not at all”. More than twenty years have elapsed after the demise of Sri.T.C.N.Menon. I am lucky in that the law of limitation is not applicable to commemorative referral.

Have you seen T.C.N. ? Have you heard of T.C.N. ? Have you heard T.C.N.? If not, see him, be acquainted with him, and hear him, through this prismatic/polychrotae portrayal.

This lawyer of renown and custodian of legal culture did not come into the profession with any impressive inheritance; but left it, bequeathing legal richesse of considerable quantity and quality to the entire lawyer classis.

T. C. N. was a lawyer made in the profession. He became an excellent exemplar in the profession by dint of hard work. He always remembered the credo: ‘work for work’s sake’. The formidable reputation of T C N as a good lawyer needs no elaboration. He upheld the culture of the profession. He was a lawyer who held all the aces and obtained centum in almost all his briefs. He made winning a habit. In his professional game, his dice hit only the ladder, not the snake at all. Thus, this law-eater lawyer went up and up. Even complicated cases were, to him, as simple as making a paper boat for a child.

T C N cultured the profession of law by studying well and trying to be dignified. He was very careful in avoiding unsound or perverse submissions. No judge blacklisted any of his submissions. This legal legend had always maintained his riding weight. His style of argument was pronounced. Every delivery of his in court stumped the opposite side. Nanoadvocacy, of these days, was alien to him. For him, advocacy was not a cut-and-paste job. To state briefly, but bluntly, he was a man tuned to the ethics and culture of the law. He had realised the importance of being T C N Menon.

Sri. T C N Menon never indulged in competitive servility and sycophancy. According to him, advocacy is not a toast to the judge; nor a cheer to the client. His life as a lawyer is a story of guts and glory. Such lawyers are, in these days, as rare and endangered as bonobos of Congo. This Hortensius-like lawyer endowed with a sterling voice, knew that a lawyer’s or a judge’s sound is no music. He always tried to understand the locus of the problem in a cause. He had the admirable gift for not getting provoked. He never fired a howitzer to kill a mosquito. He was a lawyer with whom the judges let their hair down. He made the judge feel humble. He knew that a judge is not a lawyer’s care-taker.

Sri. T C N Menon’s office always had a functional look, and was not a decorated room alone. His door was always open wide in welcome. He was a mensch, in its true sense.

His intellectual eminence and his distinguished services to the State as Additional Advocate General and to this country as a Member of Parliament, represent only one part of Sri.T C N Menon and his life. He had donned different hats in a crowded career. He functioned as an in-built stabiliser to the governmental machinery. As counsel for government, he not only urged law, but made law, by suggesting appropriate instant legislation or subordinate legislation, even in the midst of arguing a case, to save the Government. Such was the sense of commitment of this wrecker-in-chief on the side of Government.

His generousity, his loyalty to his friends and to any cause that he espoused, his courage, his truculent independence of views, his refusal ever to be cowed down by anybody or by any event however calamitous it may be, all these formed an important and characteristic part of Sri. T C N Menon. He never wished to be a poster on the wall for men to stare at.

Above all, to me, T C N was one of the staunchest of friends and one ever ready to share one’s burden. His friendship was my big brag.

Death is born along with a man’s body. Sri Menon’s body was comparatively young when he died in February 1986. Ram Mohan Palace carries his prominent foot-prints.

And T C N was T C N.

Kerala High Court Scaling New Heights

K. sukumaran, Justice, HC

Arabian Sea, a Queen of great deport
Has a consort - the Cochin Port.
Close to it is a Justice-Fort
With many a valour’s good report.
Survey Number three three two
And a bit of marsh land too.

Here once stood the Police Jail
With convicts and those denied bail!
The office which ruled the staff of Salt
A department with many a fault
A sandy stretch always kissed
By lusty waves, when sea breeze hissed
The Ruler’s heart was with glitter lit
When Viceroy agreed a State visit
A fitting mansion for the Royal guest
Dancing floor and all the rest
The spot was chosen best as site
Where one could have the finest sight!
A resting place for Royal Don
Cute design, work well done.

The happy mood was soon over
When clouds of war came lower
War broke out, and for soldiers sick
A nursing place sprung up quick
The fine building helped to heal
Much relief all did feel.

Peace then came, Freedom at Midnight,
Indian States merged with might.
Cochin was the seat of Justice
Lawyers’ tribe did much increase.

The palace was now a different place
Judges and lawyers with pleasing face.

The building beauteous, with the salt of Earth
Justice every one got, as much as worth!
Goddess Justice stepped from stone
Serene rays ever after shone
Messages of love - nearby church bells chime
Many souls were freed from crime.
Criminal trends they did freeze
Their lives were like the finest breeze!
We have run from Court to Court
To argue matters in Crime or tort
Every noble stone we have tred,
Every line of law torn to shred
Books were costly yet closely read:

All were busy to earn their bread!
Judges deeply thought and hotly debated
Just decisions reached, anger abated!
No trouble from smiling fraud or suspicious smoke
No loose talk; nonsense they will never brook.
A bit of legal History
Picked from a distant story:

TRAVANCORE

In Travancore Bench Sankarananth sat,
Law scholar in Ranjit Singh’s flat
Successive generations of Judges in his blood
As vigilant sentinels of Law, they stood
To pressure they never yielded nor did they bend
Govindan Nair marked the lineal end!
The Ruler didn’t miss the latest law
The legal Remembrance acted without flaw,
Not a feeble figurehead nor untrained hand
Steely heart - the best brain in the land

COCHIN

A tiny State was Cochin
Much refined, not an urchin
Cultured Cochin had virtues bright
Blessed were the Judges, straight and spright
Iyer Mahalingam with finest juristics
Rama Shenai expert in English logics
M.S.Menon, G.B.Pai and Govind Menon
Illustrious were they Cochin men

WOMEN  LAWYERS

The Court had its own female grace
In early days, indeed a small trace.
Many crossed the Bar and showed the mettle
Not confined to knitting, pot or kettle
The First Woman Judge of the World
We had, Kerala proudly told.
One went higher, to Supreme Court
A woman Chief Justice also they got.

CHANGING  TIMES

Times have changed, cynics say
Values vanished all dismay.
Gone are foreheads splashed with sandal paste
The youth have their modern taste !
Distressing sights, painful sounds
Chase us close like cruel hounds
Even then, shed all worries,
Hard labour brings sweet berries.
In dizzy heights is a grand Beacon
Greater heights to scale - We hopefully reckon
Golden rays of Sun beckon
Anguished hearts to relief, look on!