18 April 2018 05:00PM
What is a Compoundable offence?
Compoundable offences are those offences which are enlisted in Section 320 of the Code of Criminal Procedure. These are the offences wherein the complainant agrees to enter into a compromise and drop his or her charges against the accused. This compromise needs to be of bona fide nature and should not carry any consideration which the accused must pay the complainant. Compoundable offences are usually offences that are of less serious character and are private nature. When an offence is compounded, it is treated the same as if the accused had been acquitted of that charge. Compoundable offences are mostly non cognizable offences but not all non cognizable offences are compoundable.
Compoundable offences can be classified into two categories:
· Offences where the permission of the court is not required for compounding (section 320(1) of the Code of Criminal Procedure): These are offences like defamation, adultery, hurt and criminal trespass. In such cases, when the parties approach the court with an agreement, all the court is required to do is to record the acquittal of the accused in its judgment. The court is bound by the legislation to act upon an agreement of compromise that that is brought before it in writing and has no power to ask the parties to prove that the offence is compoundable. A compromise once entered into cannot be withdrawn and if a party breaches the terms of the compromise, then the other party can take legal recourse but such a breach does not amount to a withdrawal of the compromise.
· Offences where the permission of the court is required for compounding (section 320(2) of the Code of Criminal Procedure) These offences include criminal breach of trust, assaulting women to outrage their modesty, theft etc. These are mostly offences which are cognizable in nature but it has to be noted that not all cognizable offences are compoundable. In such cases, the magistrate has to exercise her or her discretion and decide whether a compromise should be allowed keeping in mind the interest of justice. A compromise between two parties is not legally binding until the time the court signs on their agreement.
The application to compound offences is made in the same court in which the trail of the accused is in progress.
An offence can only be compounded by the person who is enlisted in the third column of Section 320 of the Code of Criminal Procedure regardless of whether this enlisted person is the complainant in that particular case or not. It is also of no relevance whether the case was instituted upon a private complaint or a police report. If the person enlisted in the their column is of unsound mind or if he or she is a minor, then a person who is competent to contract in place of such a person can compound the offence provided that the appropriate permission from the court has been taken.
It should be noted that offences can only be compounded for as long as the case is still pending in court. This means compounding of offences can be applied for as long as the court has not pronounced its sentence. In case the decision is appealed, then compounding can be applied for by taking permission from the court. However, if the court has disposed of an appeal and given its final verdict, an application for compounding of offences under Section 320 cannot be entertained by the court. The High Court and the Sessions Court have been empowered by the law to take up requests for compounding in cases where the trial court has already convicted the accused. However, this power should be used rarely and only in occasions when the aggrieved party themselves gives consent for compounding the offence while in the presence of the court.
It is the duty of the court to exercise sound judgment when deciding whether an offence should be compounded or not. The court has been given this discretion in order to prevent people from abusing this right to compounding and also for the court to take up certain cases where compounding with the correct thing to do. In doing so, the court should exercise its own good judgment and not rely on the opinion of the police. This is because is absolutely essential that for cases which are meant for only the court to decide, they should not involve the investigation agency when it comes to decision making as they may influence the court to pass a decision in their favour.
In case an accused is acquitted because his offence is compounded but the compounding is invalid because of some reason, then the High Court can set aside acquittal of the accused by using its powers of revision.
When a compromise is struck between the parties to compound the offence, the Magistrate loses jurisdiction to try the case. If compounding offence results in acquittal and a compromise is complete as soon as it is made. The acquittal of the accused on the basis of a compromise will be upheld even if at a later time, one of the parties withdraws their consent to compromise. Moreover, once the parties have signed the document which compounds the offence, neither of them can later withdraw the document.
The compoundability of offences also depends upon the relationship between the parties. The courts have previously held that in cases like grievous hurt (Section 325, IPC), if the parties come to an amicable settlement by themselves and live peacefully in their town or village, then the court can give permission to have the accused’s offences compounded. The idea is that if the parties to a case maintain a good and peaceful relationship then they are entitled to get their offences compounded. When the parties have peacefully settled a dispute among themselves, then there is no reason in stretching a case on and carry out the whole court procedure since the parties are already resolved of their dispute.
In cases where there are more than one complainant, one can compound the offence only against themselves and not against others.
What is a Non Compoundable offence?
Those offences that are not listed in Section 320 of the Code of Criminal Procedure are categorised as non compoundable offences. All offences that are made by local laws or special laws are non compoundable offences by default. But a legislation can decide whether an offence under it can be compounded or not.
The only option for offences that cannot be compounded is that they can be quashed because these non compoundable offences are usually of serious nature affecting both the private victim as well as the society and it would be unfair on the victim to let go of the accused without any punishment. In these cases it is usually the State represented by the police which files the case. This is even more so a reason that the accused and the complainant do not come to a compromise.
Non compoundable offences cannot be compounded at any time or instance and any agreement towards the same is null and void. The trial of the accused has to be conducted and the court has to come out with a verdict declaring the accused either guilty or not guilty of the said non compoundable offence. An example of a non compoundable offence is rioting (sections 147 and 147 of the Indian Penal Code).
This brings us to the obvious question, what happens if the accused has been charged with both compoundable and non compoundable offences? In such cases, the compounded offence can be compounded and the trial will continue only on the charge of the non compoundable case.
The fact that a non compoundable offence cannot be compounded holds true even in the face of the High Court’s inherent powers under Section 482 of the Code of Criminal Procedure. The High Court can not compound a non compoundable offence but it does have the power to quash proceedings based on settlement between the parties and compromise struck between the offender and the victim.
The reason why non compoundable offence cannot be compounded under any circumstance is to ensure the delivery of justice. Non compoundable offence are mainly very serious offences like murder, public obscenity and sexual harassment. It is very unlikely that the parities involved in such cases would every come to an agreeable compromise and settle for compounding. Similarly, the court has previously set aside compounding permission for cases under Section 394 of the Indian Penal Code for causing hurt or injury to a person while committing the offence of a robbery.
In come cases of non compoundable offences, the parties may actually come to a compromise, like for offences under Section 323 and 355 of the Indian Penal Code pertaining to voluntarily causing injuries to a person or assaulting someone in order to dishonour that person. In such cases of compromise between parties, the Supreme Court has still upheld the accused’s conviction but had reduced their sentence period to the time that had already passed while the trial was going on. However, the Court did not change the amount of fine payable by the accused or the prison sentence the accused would have to serve in the event that they failed to pay the fine.
This means that the court cannot acquit the accused of a non compoundable offence even if the accused has come to a compromise with the other party. The only recourse available to the court is to consider this compromise at the time it passes its sentences. It needs to convict the accused of the crime but the court can reduce the prison sentence to a period that has already passed while the trial was going on and the accused was in custody.
Offences under the Negotiable Instruments Act, 1881
As mentioned earlier, all offences under special laws are by default non compoundable. But the Negotiable Instruments Act, 1881 makes out a specific provision (section 147) which states that all offences under the Act are compoundable in nature. As a general principle of law, a special statute always prevail over a general statute. This means that the provisions of the Negotiable Instruments Act will override the Code of Criminal Procedure and therefor the offences under the Negotiable Instruments Act are legally compoundable.
The offence under section 138 of the Negotiable Instruments Act can be compounded. This offence is with regard to bouncing of cheque or dishonouring of cheque because of insufficient funds in the cheque drawer’s bank account.
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