A

B

c

[2010] 13 (ADDL.) S.C.R. 1034

GIAN SINGH

v.

STATE OF PUNJAB & ANR

(Petition(s) for Special Leave to Appeal (Crl) No.8989 of

2010)

NOVEMBER 23, 2010

[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

Code of Criminal Procedure, 1973:

s.320-Compounding of offences-Prayer for permitting

compounding

of offences punishable u/ss

420 and 120-B /PC

-HELD: Offence punishable uls 420 is compoundable with

permission

of court, but offence punishable u/s

120-B is a

0

separate offence and since it is non-compoundable, Court

cannot permit it

to be compounded -Court cannot amend the

statutes and it must maintain judicial restraint in this regard

-

It is the Legislature alone which can amend s. 320 -The

decision of the Court in the cases of B. S. Joshi, Nikhil

E Mechant and Manoj Sharma require reconsideration by a

larger Bench - The matter be placed before the chief Justice

of India for constituting a larger Bench.

B. S.Joshi vs. State of Haryana 2003 ( 2 ) SCR 1104 =

(2003) 4 SCC 675; Nikhil Merchant vs. Central Bureau of

F Investigation and Another 2008 (12 ) SCR 236 = (2008) 9

SCC 677; and Manoj Sharma vs. State and Others 2008

(14) SCR 539 = (2008) 16 SCC 1 -referred to.

Case Law Reference:

G

2003 (2) SCR 1104 referred to para 3

2008 (12) SCR 236 referred to para 3

2008 (14) SCR 539 referred to para 3

H 1034

GIAN SINGH v. STATE OF PUNJAB & ANR. 1035

CRIMINAL ORIGINAL JURISDICTION : SLP (Criminal) No. A

8989 of 2010.

From the Order and Judgment dated 17.09.2010 of the

High Court of Punjab and Haryana at Chandigarh

in CRM No.

M-27367 of

2010.

Rajiv Kataria (for Delhi Law Chambers) for the Petitioner.

The following order of the Court was delivered

ORDER

Heard learned counsel for the petitioner.

B

c

The petitioner has been convicted under Section

420 and

Section 1208, IPC by the learned Magistrate. He filed an

appeal challenging his conviction before the learned Sessions D

Judge. While his appeal was pending, he filed an application

before the learned Sessions Judge for compounding the

offence, which, according

to the

learned counsel, was directed

to be taken up alo ng with the main appeal. Thereafter, the

petitioner filed a petitioner under Section 482, Cr.P.C. for E

quashing of

the FiR on the ground of compounding the offence.

That petition under Section 482 Cr.P.C. has been dismissed

by the High Court by its impugned order. Hence, this petition

has been

filed in this Court.

F

Learned counsel for the petitioner has relied on three

decisions of this Court, all by two Judge Benches. They are

B.S. Joshi vs. Stae of Haryana (2003) 4 SCC 675; Nikhil

Merchant

vs. Central Bureau of

lnw~stigation and Another

(2008) 9 sec 677; and Manoj Sharma vs. State and others

(2008) 16 SCC 1. In these decisions, this Court has indirectly G

permitted compounding of non-compoundable offences. One

of us, Hon'ble Mr. Justice Markandey Katju, was a member to

the fast two decisions.

Section 320, Cr.P.C.

mentions certain offences as

· H

1036 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A compoundable, certain other offences as compoundable with

the permission

of the Court, and the other offences as non­compoundable vide Section 320 (7).

Section 420, IPC, one of the counts on which the petitioner

B has been convicted,

no doubt, is a

compoundable offence with

permission

of the Court in view of

Section 320, Cr.P.C. but

Section 120B IPC, the other count on which the petitioner has

been convicted,

is a non-compoundable offence.

Section 120B

(criminal conspiracy) is a separate nffence and since it is a non­

compoundable offence, we cannot permit it to be compounded.

c

D

The Court cannot amend the statute and must maintain

judicial restraint in this connection. The Courts should not try to

take over the function of the Parliament or executive. It is the

legislature alone which can amend Section 320 Cr. P.C.

We are of the opinion that the above three decisions

require to be re-considered

as, in our opinion, something which

cannot

be done

directly cannot be done directly cannot be done

indirectly. In our, prima facie, opinion, non compoundable

E offences cannot be permitted to be compounded by the Court,

whether directly or indirectly. Hence, the above three decisions

do not appear

to us to be

correctly decided.

It is true that in the last two decisions, one of us, Hon'ble

Mr. Justice Markandey Katju, was a member but a Judge

F should always be open to correct his mistakes. We feel that

these decisions require re-consideration

and hence we direct

that this matter be

placed before a larger Bench to reconsider

the correctness

of the aforesaid three decisions.

G Let the papers

of this case be

placed before Hon'ble

Chief Justice of India for constituting a larger Bench.

R.P. Matter referred to larger Bench.