ITEM NO.16 COURT NO.6 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).8989/2010
(From the judgement and order dated 17/09/2010 in CRM No.
27367/2010 of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)
GIAN SINGH Petitioner(s)
VERSUS
STATE OF PUNJAB & ANR Respondent(s)
(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 JURISDICTION
PETITION(S) FOR SPECIAL LEAVE TO APPEAL(CRL.) NO.8989 OF
2010
GIAN SINGH ..PETITIONER
VERSUS
STATE OF PUNJAB & ANOTHER ..RESPONDENTS
O R D E R
Heard learned counsel for the petitioner.
The petitioner has been convicted under Section 420
and Section 120B, IPC by the learned Magistrate. He filed
an 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 482
Cr.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
indirectly 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]
NEW DELHI; ……………………..J.
NOVEMBER 23, 2010 [GYAN SUDHA MISRA]