R.M. Prasad, J.@mdashThe present revision is directed against the judgment and order passed by the 7th Additional Sessions Judge, Nalanda in Cr. Appeal Nos. 106/92 / 1/63 dismissing the said appeal with modification in sentence.
2. The short facts of the case are that the informant Karuna Devi filed a complaint in the Court of the Chief Judicial Magistrate, Nalanda who directed the police to institute the case and take up investigation and thereafter Harnaut P.S. case under Sections 488, 323, 379 and 498 I.P.C. was registered. The police submitted charge sheet and, accordingly cognizance of the offence was taken. The learned Magistrate convicted all the three accused, namely the petitioners for the charge under Sections 323, 379 and 498A I.P.C. and sentenced them to undergo R.I. for two years u/s 379 I.P.C. and R.I. for two and a half years u/s 498A I.P.C. The sentences were directed to run concurrently. No separate sentence u/s 323 I.P.C. was passed.
3. Being aggrieved by the said judgment and order of conviction, the petitioner filed the abovementioned appeal which was finally heard by the 7th Additional Sessions Judge, Nalanda.
4. It appears that in the said appeal a compromise petition signed by the parties was filed along with a petition seeking permission to compromise but, as both the aforementioned offences under which the petitioners were convicted are not compoundable, the compromise was not accepted. Further, it appears that no argument by either side was advanced on the merit of the case rather, learned Counsel for both the sides pressed for recording compromise and to dispose of the appeal in terms of compromise. It also appears that the husband and in-law of the informant and the informant herself appeared before the Appellate Court and informed that the matter has been compromised and the informant already started living with her husband in his house.
5. The Appellate Court considering the factum of compromise and good relation restored between the parties allowed benefit of Section 360 Cr.P.C. read with provision of the Probation Act and in the interest of justice, modified the sentence awarded to the petitioners and released them on executing a probation bond of Rs. 2,000/- with twosureties each of like amount for a period of two years, so that during the said period they will maintain peace and be of good behaviour.
6. Mr. N.K. Agrawal, learned Counsel appearing for the petitioners, raised a short question. It was submitted by the learned Counsel that once the parties had compromised and the Court considered the factum of compromise and accepted the same, the Court had no jurisdiction to award any sentence whatsoever. Learned Counsel also submitted that in any case in order to bring amity between husband and wife and to avoid deterioration of married life, the Appellate Court should have treated this case to be of a peculiar and special nature and granted permission to compound the offence. In support of this he placed reliance on a decision of Bombay High Court in the case of
"23. While granting permission to compound the offence, particularly u/s 498A of the Indian Penal Code, peculiar and special circumstances are to be considered and if considering the special and peculiar circumstances, if theCourt is satisfied, then only parties are to be allowed to compromise the matter hoping in view the welfare of the parties in the matrimonial cases "
7. I am unable to agree with the view taken by the learned Single Judge of Bombay High Court. It is true that while granting permission to compound the offences under the Indian Penal Code, peculiar and special circumstances are to be considered but at the same time, the Court cannot exercise jurisdiction which is not conferred under the statute. There cannot be any dispute that both from the personal and social point of view it is the duty of the Court to make every endeavour to bring about a reconciliation between the parties in order to bring stability of marriage. But, in my opinion, to achieve the same the Court cannot legislate and assume jurisdiction in itself.
8. Learned Counsel for the petitioners also placed reliance on a decision of the Supreme Court in the case of
9. In the case of Mahesh Chand (supra) the Supreme Court has not laid down the law. It is true that the Supreme Court in the said case, in which the conviction was u/s 307 I.P.C. and not compoundable under law, in the peculiar circumstances, treating it to be a special case, held that it may be proper that the Trial Court shall permit the parties to compound the offences and accordingly directed the Trial Judge to accord permission to compound the offence after giving an opportunity to the parties and after being satisfied with the compromise agreed upon. But, in the present case, in the absence of any such direction from the Apex Court, the Appellate Court had no jurisdiction to accept the compromise when the conviction was made u/s 498A I.P.C. which is not compoundable. A reference in this connection may be made to a decision of the Supreme Court in the case of
10. Thus, I do not find any infirmity in the impugned judgment/order. In my opinion, the Appellate Court, in the circumstances of the case, was fully justified in modifying the sentence while maintaining conviction of the petitioners.
11. The application is, accordingly, dismissed in lintine.
