The High Court of
Punjab & Haryana at Chandigarh) Gian Singh Vs State of Punjab & ANR
(With appln(s) for
ex-Parte stay, exemption from filing c/c of the
impugned Judgment, exemption
from filing O.T.
Date: 23/11/2010 This
Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE
MARKANDEY KATJU
HON'BLE MRS. JUSTICE
GYAN SUDHA MISRA For Petitioner(s) Mr. Rajiv Kataria, Adv. for
M/S. Delhi Law
Chambers UPON hearing counsel the Court made the following
O R D E R
Learned counsel for
the petitioner has relied on three decisions of this Court, all by two Judge
Benches. They are B.S.Joshi vs. State of Haryana (2003) 4 SCC 675; Nikhil
Merchant vs. Central Bureau of Investigation and Another (2008) 9 SCC 677; and
Manoj Sharma vs. State and Others (2008) 16 SCC 1. It is true that in the last
two decisions, one of us, Hon'ble Mr. Justice Markandey Katju, was a member but
a Judge 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. Let the papers of this case be placed before Hon'ble Chief
Justice of India for constituting a larger Bench.(Parveen Kr. Chawla) ( Indu
Satija ) Court Master Court Master [Reportable Signed Order is placed on the
file] REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTIONPETITION(S)
FOR SPECIAL LEAVE TO APPEAL(CRL.) NO.8989 OF2010GIAN SINGH ..PETITIONER VERSUSSTATE
OF PUNJAB & ANOTHER ..RESPONDENTS O R D E R Heard learned counsel for the
petitioner. The petitioner has been convicted under Section 420and Section
120B, IPC by the learned Magistrate. He filedan appeal challenging his conviction
before the learned Sessions 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 along with the main appeal. Thereafter, the petitioner filed a petition
under Section 482, Cr.P.C. for quashing of the FIR on the ground of compounding
the offence. That petition under Section 482Cr.P.C. has been dismissed by the
High Court by its impugned order. Hence, this petition has been filed in this
Court. Learned counsel for the petitioner has relied on three decisions of this
Court, all by two Judge Benches. They are B.S. Joshi vs. State of Haryana
(2003) 4 SCC 675;Nikhil Merchant vs. Central Bureau of Investigation and Another
(2008) 9 SCC 677; and Manoj Sharma vs. State and -2-Others (2008) 16 SCC 1. In
these decisions, this Court has in directly permitted compounding of non-compoundable
offences. One of us, Hon'ble Mr. Justice Markandey Katju, was a member to the
last two decisions. Section 320, Cr.P.C. mentions certain offences as compoundable,
certain other offences as compoundable with the permission of the Court, and
the other offences as non-compoundable vide Section 320(7). Section 420, IPC,
one of the counts on which the petitioner 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 offence and since it is a non-compoundable offence, we
cannot permit it to be compounded. 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 indirectly. In our, prima facie,
opinion, non-compoundable 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. -3- It is true that in the last two decisions,
one of us, Hon'ble Mr. Justice Markandey Katju, was a member but a Judge 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. Let the
papers of this case be placed before Hon'ble Chief Justice of India for
constituting a larger Bench.
..........................J.
[MARKANDEY KATJU]
;
..........................J. [GYAN SUDHA MISRA]
NEW
DELHI
NOVEMBER
23, 2010
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