Compounding of Offences
”In our country, where the arrears of pending court cases
is huge, it is appropriate that, in public interest, we keep reviewing
the penal statues and have a policy regarding compounding of offences.”
Under section 320 of the
Code of Criminal Procedure, 1973 offences under the Indian Penal Code as
specified in the tables provided in the section may be compounded by persons
with or without the permission of the Court. However, there are several
offences that do not fall within the purview of the Indian Penal Code.
These offences are defined by other Statutes. Can the said statutory offences
be compounded when the Statute creating them does not provide for their
compounding? In Ram Lal v. State of J. and K. (AIR 1999 SUPREME
COURT 895) the Hon'ble Supreme Court has held that an offence which law
declares to be non-compoundable, even with the permission of the Court,
cannot be compounded.
While compounding an offence,
a person in his individual capacity is permitted by law to come to terms
with the party against whom he complains for consideration. In Cr.P.C,
for the purpose of compounding, offences are graded in terms of their impact
upon society. Offences that are not grave in nature are allowed to be compounded.
More serious offences cannot be compounded in view of their bearing upon
the society. Generally summons cases can be compounded and not warrant
cases. The reasoning behind compounding may be that it saves unnecessary
litigation and is in the interest of both the parties. The injured party
may accept some form of solatium as sufficient compensation for what he
has suffered. Compromise/composition provisions as a matter of policy are
included in various statutes in the interest of parties concerned and to
lessen the burden of judiciary.
It is necessary, however,
that serious law breakers be brought to book and adequately punished rather
than giving them a chance to escape from penalties of law merely by offering
"composition monies’’. In view of the recent scams, growing corruption,
organised crime and growing evil of fraudulent practices in the market,
it is imperative that the society impose deterrent punishment on the wrong
doers. Composition should be allowed only in cases, which do not affect
society in general but are of personal nature.
Under section 23 of the Indian
Contract Act, 1872, agreements to compound offences which are not compoundable,
have been held, by Indian courts, to be against the public policy. Courts
have observed that it is against the public policy to make trade of felony
or attempt to secure benefit by stifling a prosecution or compounding an
offence that is not compoundable in law. The principle is that no court
of law can countenance or give effect to an agreement that attempts to
take the administration of law out of the hands of the judges and put it
in the hands of private individuals. However, it has also been said that
it is only in the cases of certain serious offences against the State that
no composition is allowed.
In the very important case
of Union Carbide Corporation v. Union of India AIR 1992 SC 248 the
Supreme Court observed that the allegations of unlawfulness of consideration
against the settlement reached in Bhopal Gas Disaster case on ground that
dropping of criminal charges and undertaking to abstain from bringing criminal
charges in future were part of the consideration for the offer of 470 million
of US dollars by the UCC and as the offences involved in the charges were
of public nature and non-compoundable, the consideration for the agreement
was stifling of prosecution and, therefore, unlawful, are not tenable.
The settlement is not hit by S.23 or 24 of the Contract Act and no part
of the consideration for payment of 470 million US dollars was unlawful.
In our country, where the
arrears of pending court cases is huge, it is appropriate that, in public
interest, we keep reviewing the penal statues and have a policy regarding
compounding of offences. One instance which comes to mind is the treatment
of offence under section 138, Negotiable Instruments Act, 1881. It is quite
surprising that under the said Act there is no provision for compounding
the offence. Once the accused has been summoned he has to go through the
trial after appearance in court, even if he is willing to pay the cheque
amount to the complainant whose main purpose is recovery of money rather
than punishment of the accused. This is a deemed offence, which is basically
between the complainant and the accused, and there is no reason why the
complainant should not be allowed to withdraw it after receiving his payment
from the accused. Once the complainant is satisfied, the discharge of accused
does not have any adverse repercussions on the society. The very appearance
of the accused before the Court, and being on bail, is sufficient deterrence
for him to repeat the offence.