Compounding of offences

Compounding of offences

Author: Dhruv Gupta, GGSIPU

Introduction

The criminal justice system in India can be understood in reference to three basic principles that are as follows-

• It is an adversarial system i.e, the prosecutor (on behalf of the State) accuses the person of the commission of some crime and he has to prove his case beyond a reasonable doubt. The person also has a fair opportunity to defend himself
• There is a presumption of innocence i.e, the person accused is presumed to be innocent unless proven guilty beyond reasonable doubt
• Justice is administered by an independent, impartial and competent judge

Thus, it can be seen that, in case of crime in India, the State plays a very active part in the whole criminal trial. Therefore, it leads to the fact that a compromise between the victim (and his family) and the accused does not absolve the accused of the criminal responsibility attached to his act, which would not be the case in a civil matter. However, there may be certain crimes where such compromises may take place, and due regard would be given to them, by all. This is where the concept of compounding finds its place.

Before, going into the discussion regarding compounding, it is first important to understand what a crime/offence is.

What is a crime/offence?

Crime and offence are synonymous words, used in the exchange for one-other, to define a certain action or course of action.

A crime is an offence that merits community condemnation and punishment, usually by way of fine or imprisonment. This is different from a civil wrong which is an action against an individual that requires compensation or restitution. (Legal Services Commission of South Australia[1])

According to Merriam Webster[2], crime is-

• An illegal act for which someone can be punished by the government
• A grave offence especially against morality

The Black’s Law Dictionary[3]defines crime as“a positive or negative act in violation of penal laws; an offence against the State”.

After a thorough analysis of the above definitions, crime can be understood as an act which is against the basic ideals of society, and which if undertaken, not only affects the individual affected by it, but also the society and the State at large.

What is compounding?

According to the Black’s Law Dictionary, Seventh Edition, ‘compounding of a crime’ means “the offence of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution”. Similarly, in Law Lexicon, Second Edition, ‘compounding’ is defined as “the offence of taking a reward for forbearing to prosecute a felony; as where the party takes his goods again, or other amends upon an agreement not to prosecute”.[4]

Thus, compounding basically means a process whereby the victim (and his family) of a crime agrees to undertake a compromise with the accused person. The compromise involves the accused making good to the victim, while the victim ensures that s/he would not undertake legal action against the accused. This is all done on the basis of an agreement, whether oral or written.

Compoundable and Non-compoundable offences

Since crime is considered as a wrong, not only against the individual victim but also against the society and the State at large, therefore, absolving in such criminal matters is next to impossible. This is due to the fact that the State, as the administrator of justice would not wish to absolve an accused of the crime committed by him, as it would lead to a hampering of criminal justice administration in the country.

However, at the same time, the State realizes that it cannot be trespass into the private domain of the person, beyond a certain limit. This limitation on the power of the State to include itself into a prosecution for crime in very private matters is what has led to the evolution of the whole idea of compounding.

Section 320 of the Criminal Procedure Code, 1973 provides that-

“320. Compounding of offences– (1) The offences punishable under the sections of the Indian Penal Code (45 of 1980), specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that Table:-

(2) The offences punishable under the sections of the Indian Penal Code (45 of 1980), specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table:-”

On a perusal of the tables mentioned in sub-section (1) and sub-section (2) of section 320, we can derive the following points-

• Sub-section (1) allows compounding, without involving the court, in offences which are basically of a private nature, and relatively not quite serious like voluntarily causing hurt (sec. 323), theft (sec. 379), assault or use of force (sec. 352, 355, 358), cheating (sec. 417), etc.
• Sub-section (2) allows compounding, with permission of the court. In this, offence covered involve causing miscarriage (sec. 312), criminal breach of trust (sec. 406), marrying again during the lifetime of a husband or wife (sec. 494), etc. All these offences are cognizable (i.e, the police can file a report and arrest without warrant, thus, requiring the involvement of the court in the compounding process)

The offences covered in these sub-sections are termed as ‘compoundable offences’.

With regard to the question of what happens in cases where the offences committed, is not covered within the two tables under sub-section (1) or (2), sub-section (9) provides that “No offence shall be compounded except as provided by this section”. The offences, which form part of sub-section 9 are termed as ‘non-compoundable offences’.

A controversy, with regard to offences not covered in sub-section (1) or (2) and their compounding, arose with the decision of the Supreme Court in Mahesh Chand vs State of Rajasthan[5], where the court allowed for compounding of offence under section 307 (attempt to commit murder). This led to confusion in the whole justice administration, and there were conflicting judgments given by different High Court.

The Supreme Court, in the case of Ram Lal vs State of J&K[6], set to rest this confusion and stated that-

“It is apparent that when the decision in Mahesh Chand vs State of Rajasthan was rendered, the attention of learned Judges was not drawn to the aforesaid legal prohibition… We hold that an offence which the law declares to be non-compoundable even with the permission of the court cannot be compounded at all.”

Sub-section (7) provides for another class of non-compoundable offences. It states that if an accused is liable either to enhanced punishment or to a punishment of a different kind, due to a previous conviction, then also the offence cannot be compounded.

Further, sub-section (3) of the section provides that not only the offence itself but even its abetment, attempt or common intention or common object, with such offences in its center, can be compounded too, under this section.

Sub-section (4) of the section provides for exceptional circumstances and state that if the person competent to compound the offence, cannot due to certain disability do the same, then it can be done by the person as provided under-

• Underage of 18 years or an idiot or lunatic, then any person competent to contract on his behalf may compound
• Is dead, then the legal representatives or any person, with the consent of the Court

Process of Compounding

Whether it is compounding under sub-section (1) or sub-section (2), the process of compounding is almost the same.

For compounding of offence under sub-section (1), the accused person and the victim sit across each other and reach a compromise. The accused promises to makes good on the accused (either through remuneration or other means) while the victim states that he would not take any legal action against the accused.

For compounding under sub-section (2), the process followed is almost the same, and both the parties agree to do the same as mentioned above. But, in such cases, there is also a next step, where the victim or the accused approaches the court and states that such compounding has taken place. Once, an application for the same is filed, then the Court hears both the sides, including the Public Prosecutor (representing the State), and if the Court thinks fit, it can allow for such compounding.

Role of the Court in such compounding

As already seen from the above discussion, the court does not have any role to play in the compounding of offences mentioned under sub-section (1).

However, in the case of compounding of offences mentioned under sub-section (2), the permission of the court is necessary. ‘Permission of the court’, here means, that the court will consider all the facts and circumstances of the case, and determine whether compounding should be allowed or not. Just because a compromise is reached does not mean that compounding would surely take place. Although such a compromise does have some bearing, other circumstances are also considered before deciding about such compounding.

Further, under sub-section (5), it is stated that in cases where the accused has been committed to trial (mostly with regard to offences mentioned under sub-section (1)), or who has been convicted and an appeal is pending, then compounding in such cases, can only take place with the permission of the court to which the accused is committed or before which appeal is pending.

Sub-section (6), further, provides that a High Court or Court of Session, in its power of revision under section 401 of the Code of Criminal Procedure, 1973, may allow any person, who is competent to compound the offence, to compound the said offence. This basically deals with the right of the persons involved in a compromise, to approach the higher court, in revision, to give effect to the compromise and compound the offence.

Thus, the above-mentioned provisions help in determining that such compounding of an offence could take place at any time before the sentence is pronounced [State of Karnataka vs Cyabarial, 2005 Cri LJ 2352 (Kant)]. Further, if an appeal has been filed against the said decision, then compounding can take place, only after the permission of the Appellate Court.

Effect of Compounding

Sub-section (8) provides that the compounding of an offence under the said section would have the effect of an acquittal of the accused with whom the offence had been compounded.

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[1]https://lawhandbook.sa.gov.au/ch12s01.php

[2]https://www.merriam-webster.com/dictionary/crime

[3]https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law-Dictionery.pdf

[4] For further reference, refer to the case of Sudheer Kumar vs M.K. Kunhiraman, Crl. MC No. 1540 of 2007, Kerala High Court

[5] 1991 SCC (Cri.) 159

[6] (1999) 2 SCC 213