Jamal Dafadar And Others vs Unknown
2021 Latest Caselaw 4784 Cal

   18
13.09.2021

mb In the High Court at Calcutta Criminal Appellate Jurisdiction

C.R.A. 272 of 2017 With IA No. C.R.A.N. 1 of 2020 (Old No. C.R.A.N. 800 of 2020)

In the matter of : Jamal Dafadar and others ...appellants

Mr. Ujjal Roy, Mr. Satadru Lahiri ...for the appellants Mr. Rana Mukherjee, Mr. Imran Ali, Mr. Mirza Firoj Ahmed Begg ...for the State

Mr. Arpa Chakraborty ...for the de facto complainant

Learned counsel for the appellants as well as the de

facto complainant contend that both the parties have

reached an out-of-court settlement between themselves. It

is further submitted by learned counsel for the appellants

that this Court has power under Section 320(5) of the Code

of Criminal Procedure to compound the offences, although

one of the charges was under Section 324 of the Code,

which does not fall within the categories mentioned in sub-

sections (1) and (2) of Section 320 of the Code of Criminal

Procedure.

Learned counsel places reliance on two judgments of

the Supreme Court, the first reported at AIR 1988 SC 2111

(Mahesh Chand & Anr. vs. State of Rajasthan) and the

other at (2005) 1 SCC 347 (Y. Suresh Babu vs. State of A.P.

& Anr.) in support of such proposition.

Learned counsel for the State, by placing reliance on

the evidence of the Doctor, that is, P.W. 11, submits that

the offence committed by the appellants under Section 324

of the Code of Criminal procedure was established beyond

doubt by such evidence.

Be that as it may, since the charges were respectively

under Section 324 and Section 448 and are connected by

the same chain of events and as the de facto complainant

and the appellants have reached an amicable settlement

between themselves, there is no use to further restrict the

personal liberty of the appellants by prolonging their

incarceration unnecessarily.

Upon a composite reading of Section 320 of the Code

of Criminal Procedure, it is evident that sub section (5)

thereof is independent and irrespective of sub sections (1)

and (2), the latter sub-sections enlisting the compoundable

offences.

Section 320(5) of the Code of Criminal Procedure

categorically provides that when the accused has been

committed for trial or when he has been convicted and an

appeal is pending, no composition for the offence shall be

allowed without the leave of the Court to which he is

committed, or, as the case may be, before which the appeal

is to be heard. Hence, it is evident that the power of the

appellate court in compounding offences is not

circumscribed by the restrictions stipulated in sub -ections

(1) and (2) of the said Section itself.

In such view of the matter, I am of the opinion that

the offences allegedly committed by the appellants should

be treated to be compoundable. As per Section 320(8) of

the Code of Criminal Procedure, the composition of an

offence under the said Section shall have the effect of an

acquittal of the accused with regard to whom the offence

has been compounded.

In such view of the matter, C.R.A. 272 of 2017 is

disposed of, compounding the offences alleged against the

appellants. The appellants shall, accordingly be acquitted

immediately.

The superintendent of the concerned correctional

home shall act on the basis of the server copy of this order

without insisting upon a certified copy thereof.

In case of violation of such mandatory direction, the

Superintendent will run the risk of committing contempt of

court.

In view of disposal of the appeal itself, the connected

application, bearing IA No. C.R.A.N. 1 of 2020 (Old No.

C.R.A.N. 800 of 2020) is also disposed of.

Let urgent photostat certified copies of this order, if

applied for, be given to the parties upon compliance of all

requisite formalities.

(Sabyasachi Bhattacharyya, J.)