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) Court Master

( Indu Satija ) 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]