Case Note & Summary
The Supreme Court dismissed a criminal appeal by special leave against a Bombay High Court order that set aside an acquittal and directed the trial magistrate to proceed with two complaint cases. The respondent No.1, Parmanand Jhaveri, filed two complaints before the Presidency Magistrate, Girgaum, against the appellant Rameshchandra J. Thakkar and another accused B.K. Shah, alleging offences under Section 420 of the Indian Penal Code and Section 13 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. The complaints alleged that the accused had agreed to sell flats and a plot, had received Rs. 28,000, but failed to deliver possession. B.K. Shah could not be traced, and the cases proceeded against the appellant alone. Charges were framed on April 2, 1970, under Sections 3 and 4 read with Sections 13-14 of the Maharashtra Ownership Flats Act and Section 420 IPC. On April 30, 1970, after some evidence was recorded, the trial magistrate recorded that the parties had put in an agreement whereby the accused undertook to do certain things within a certain period, the complainant did not wish to proceed, and the case was compounded and the accused acquitted. On August 17, 1970, the respondent filed an application stating that the appellant had not fulfilled the undertaking. The magistrate on January 25, 1971, held the appellant guilty of contempt of court for going back on the undertaking and directed that papers be sent to the High Court for appropriate action. When the matter came before the Bombay High Court, the Division Bench took the view that it was not a fit case for contempt action but that the order of acquittal should be set aside. After issuing notice to the appellant, the High Court set aside the acquittal and directed the trial magistrate to proceed with the trial from the stage at which the complainant had been persuaded not to press the complaints. The appellant then appealed to the Supreme Court. The Supreme Court examined the provisions of the Code of Criminal Procedure, 1898, and the Maharashtra Ownership Flats Act, 1963. It found that the offence under Section 13 of the Maharashtra Act was not compoundable either with or without court permission, whereas Section 420 IPC was compoundable only with court permission. The Court noted that under Section 345(7) of the Code, no offence shall be compounded except as provided by that section. The Court relied on K. Chinnaswamy Reddy v. State of Andhra Pradesh, which held that an acquittal based on a compounding of an offence which is invalid under the law can be set aside in revision by the High Court. The Court also held that there was no irregularity in the High Court acting suo motu because all that is necessary to bring the High Court's powers of revision into operation is such information as makes the High Court think that an order made by a subordinate court is fit for the exercise of its powers of revision, following State of Kerala v. Narayani Amma Kamala Devi. Regarding the contention that the High Court should not have interfered with the acquittal for Section 420 IPC, the Court found no substance: no order granting permission to compound that offence had been produced; even if permission had been granted, it would have been one indivisible permission covering both offences, and it is not permissible to sever the permission into two parts and uphold it for one offence while holding it invalid for the other. Accordingly, the Supreme Court dismissed the appeal and upheld the High Court's order setting aside the acquittal and directing the trial to proceed.
Headnote
A) Criminal Procedure - Compounding of Offences - Invalid Compounding of Non-Compoundable Offence - Code of Criminal Procedure, 1898, Section 345(7); Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Section 13 - Trial Magistrate compounded offences under Section 420 IPC and Section 13 of the Maharashtra Act and acquitted the accused; Section 13 offence is non-compoundable either with or without court permission; High Court set aside the acquittal; Supreme Court held that where an acquittal is based on compounding and the compounding is invalid in law, the acquittal would be liable to be set aside; K. Chinnaswamy Reddy v. State of Andhra Pradesh followed. (Paras 10-17) B) Criminal Procedure - Revisional Power of High Court - Suo Motu Exercise of Revision - Code of Criminal Procedure, 1898, Section 439 - High Court acted suo motu after trial magistrate forwarded papers for contempt and issued notice to accused; no irregularity in procedure as High Court can exercise revision on information that an order made by a Subordinate Court is fit for revision; State of Kerala v. Narayani Amma Kamala Devi followed. (Para 18) C) Criminal Procedure - Compounding of Offences - Indivisible Permission for Multiple Offences - Code of Criminal Procedure, 1898, Section 345; Indian Penal Code, 1860, Section 420 - Even if permission had been granted to compound Section 420 IPC, no order granting such permission was produced; moreover, permission was one indivisible permission for both offences, and it is not permissible to sever the permission into two parts and uphold it for the compoundable offence while holding it invalid for the non-compoundable offence. (Paras 19-20)
Issue of Consideration
Whether the High Court had power to set aside an acquittal based on invalid compounding of a non-compoundable offence; whether the High Court acted irregularly by exercising suo motu revisional jurisdiction; whether the High Court should have interfered with the acquittal insofar as it related to the offence under Section 420 IPC
Final Decision
The Supreme Court dismissed the appeal, upheld the Bombay High Court's order setting aside the acquittal, and directed the trial magistrate to proceed with both complaint cases in accordance with law from the stage at which the complainant had been persuaded not to press the complaints.
Law Points
- An acquittal based on compounding of a non-compoundable offence is invalid and liable to be set aside
- High Court can exercise revisional power suo motu on information that an order is fit for revision
- permission to compound must be considered indivisible when multiple offences are compounded together
- Section 420 IPC is compoundable only with court permission while Section 13 Maharashtra Ownership Flats Act is non-compoundable
