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PETITIONER: RAM LAL AND ANOTHER

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR

DATE OF JUDGMENT:       25/01/1999

BENCH: K.T.Thomas, M.B.Shah

JUDGMENT:

DER Leave granted.

     The  first  appellant Ram Lal stands convicted of  the offence  under  Section 326 of the IPC and is  undergoing  a sentence  of  three  Years.  The second appellant  has  been convicted  of  Sec.   324 of the IPC and  was  sentenced  to imprisonment  for  two years.  The parties have  compromised and  a  petition for compounding has been filed.  We  cannot accede  to  the  request for compounding in  regard  to  the offence   under   Section  326  IPC  as  the   same   is   a non-compoundable  offence.   Sri DD Thakur,  learned  Senior Counsel invited our attention to the decisions of this Court in Y.Suresh Babu vs.State of AP and another [1987(2) JT 361] and  Mahesh Chand and another vs.  State of Rajasthan  [1990 SCC  (Suppl)  681]  wherein  non-compundable  offences  were allowed  to be compounded.  In Y.Suresh Babu (Supra) it  was specifically  observed  that  the said case  "shall  not  be treated  as a precedent".  In the latter case (Mahesh Chand) offence under Section 307 IPC was permitted to be compounded with the following observations:

     "We  gave  our anxious consideration to the  case  and also the plea pur forward for seeding permission to compound the  offence.   After examining the nature of the  case  and circumstances  under which the offence was committed it  may be proper that the trial court shall permit them to compound the offence."

     We are unable to follow the said decision as a binding precedent  Section  320  which deals  with  "compounding  of offences"  provides  two  Tables   therein,  one  containing descriptions  of  offences  which can be compounded  by  the person mentioned in it and the other containing descriptions of  offences which can be compounded with the permission  of the  Court  by  the persons indicated  therein.   Only  such offences  as  are  included in the said two  Tables  can  be compounded and none else.  Sub-Section (9) of Section 320 of the  Code of Criminal Procedure, 1973 imposes a  legislative ban in the following terms:

     "(9) No offence shall be compounded except as provided by this section."

     It  is apparent that when the decision in Mahesh Chand (Supra) was rendered attention of the learned Judges was not drawn to the aforesaid legal prohibition.  Nor was attention

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of  the learned Judges who rendered the decision in Y.Suresh Babu (supra) drawn.  Hence those were decisions rendered per incuriam.   We hold that an offence which law declares to be non-compoundable  even  with  the permission  of  the  Court cannot  be compounded at all.  The offence under Section 326 IPC  is,  admittedly, non-compoundable and hence  we  cannot accede  to the request of the learned counsel to permit  the same to be compounded.

     However,  considering the fact that parties have  come to  a settlement and the victims have non grievance now  and considering  the  further  fact  that  first  appellant  has already  undergone  a  period of imprisonment of  about  six months,  a lenient view can be taken and the sentence can be reduced  to  the period which he had already undergone.   We order  so  and  direct the jail authorities to  set  him  at liberty forthwith.

     Regarding  the second appellant we permit the  parties to  compound  the offence (section 324 IPC) in view  of  the joint  application filed by the legal representatives of the deceased  complainant  and  the second appellant  (vide  his application  No.   Crl.  M.P.No.  7648/98).  In view of  the aforesaid  compounding  of the offence under Section 324  of IPC  we set aside the conviction and sentence passed on  the second appellant and he is acquitted under Section 320(8) of the Code of Criminal Procedure, 1973.

     The appeal is disposed of accordingly.