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Shabbir Khan Vs. Mohd. Ismail Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1972CriLJ666
AppellantShabbir Khan
RespondentMohd. Ismail Khan and ors.
Cases ReferredRamesh Chandra v. State
Excerpt:
- - would be compoundable in the like manner. he, therefore, ordered that the record be placed before the hon'ble the chief justice for constituting a full bench to consider whether this point was correctly decided in the case of 1968 cri lj 1342 (all) (supra) the division bench before whom the re vision application was listed next also endorsed the opinion of the learned single judge. it was held that upon failure of the charge under section 302/149 i. 3) the appellant would be clearly prejudiced when he was to be convicted under section 302 i p. there is, therefore, a good deal of difference between the nature of vicarious liability created under section 34 i. that inevitably takes us to the question as to whether the appellants can be convicted under section 302/34. like section.....s.d. khare, j. for himself and on behalf of m.n. shukla, j.1. the main question to be considered by a learned single judge of this court was whether the offences punishable under sections 325 and 323. both read with section 149 i. p. c., could have been allowed to be compounded by the learned sessions judge, who had heard the appeal against conviction.2. an offence punishable under section 323 i. p. c. is compoundable, while an offence punishable under section 325 i. p. c. is compoundable with the permission of the court (vide section 345 cr. p. c.). the question for consideration is whether offences punishable under sections 325/149 and 323/149 i. p. c. would be compoundable in the like manner.3. according to the view taken by a division bench of this court in the case of state of u. p......
Judgment:

S.D. Khare, J. for himself and on behalf of M.N. Shukla, J.

1. The main question to be considered by a learned single Judge of this Court was whether the offences punishable under Sections 325 and 323. both read with Section 149 I. P. C., could have been allowed to be compounded by the learned Sessions Judge, who had heard the appeal against conviction.

2. An offence punishable under Section 323 I. P. C. is compoundable, while an offence punishable under Section 325 I. P. C. is compoundable with the permission of the Court (vide section 345 Cr. P. C.). The question for consideration is whether offences punishable under Sections 325/149 and 323/149 I. P. C. would be compoundable in the like manner.

3. According to the view taken by a Division Bench of this Court in the case of State of U. P. v. Chandrapal Singh 1968 Cri LJ 1342 (All). Section 149 I. P. C. creates vicarious liability but does not create a distinct offence, and, therefore, an offence punishable under Section 323/149 I. P. C. is compoundable in the same manner as an offence punishable under Section 323 I. P. C. simpliciter. The learned single Judge doubted the correctness of this decision because it has been held by the Supreme Court in a series of decisions that Section 149 I. P. C. creates a distinct offence and therefore, a person charged for an offence under Section 302/149 I. P. C. cannot be convicted under section 302 I. P. C. simpliciter if for one reason or another it is held that he was not a member of an unlawful assembly. He, therefore, ordered that the record be placed before the Hon'ble the Chief Justice for constituting a Full Bench to consider whether this point was correctly decided in the case of 1968 Cri LJ 1342 (All) (supra) The Division Bench before whom the re vision application was listed next also endorsed the opinion of the learned single Judge. The question posed by the learned single Judge has. therefore, to be considered by this Full Bench.

4. We have heard the learned Counsel for the parties at some length, and with great respect we are of the opinion that the case of 1968 Cri LJ 1342 (All) (supra) does not lay down the correct law on the subject.

5. In order to decide whether a particular offence is compoundable or not reference has to be made to section 345 Cr. P. C., which lays down that certain offences mentioned therein are compoundable. Without that provision in the Code of Criminal Procedure no criminal offence could be compoundable. The provisions of section 345 Cr. P. C. have, therefore, got to be strictly construed.

6. In this connection reference might be made to the case of Biswabahan Das v. Gopen Chandra Hazarika : 1967CriLJ828 . The Supreme Court expressed the same view and held that:

To have the effect of an acquittal under Section 345 (6) Cr. P. C. the offence compoundable must be one specified either under Sub-section (1) or Sub-section (2) of Section 345 Cr. P. C. The principle behind the scheme seems to be that wrongs of certain classes which affect mainly a person in his individual capacity or character may be sufficiently redressed by composition with or without the leave of the Court as the case may be, but any such composition would have the effect of an acquittal...

It was therefore, held that by payment of compensation as provided under Section 62 of the Assam Forest Regulation (7 of 1891) the person charged under Sub-section (2) of section 62 was not absolved of that charge and the payment of compensation by him did not have the effect of clearing his character or vindicating his conduct.

7. A perusal of Section 345 (1) Cr. P. C. shows that an offence of causing hurt punishable under section 323 is compoundable by a person to whom the hurt is caused. Sub-section (2) of section 345 Cr. P. C. provides that the offence of voluntarily causing grievous hurt punishable under Section 325 I. P. C. is also compoundable by the person to whom hurt is caused, but that could be done only with the permission of the court before which any prosecution for such offence is pending. The offences punishable under Sections 143 (being member of an unlawful assembly) 147 (rioting) and 149 (creating vicarious liability and amounting to the same offence as committed by any member of the unlawful assembly) are contained in Chapter VIII (offences, against public tranquillity) of the Indian Penal Code and are excluded from the list of compoundable offences.

8. It could not be contended, and has not been contended, before us that offences punishable under Sections 143 and 147 I. P. C. are compoundable. In the case of 1968 Cri LJ 1342 (All), (supra) it was held by a Division Bench of this Court that an offence punishable under Section 147 I. P. C. is not compoundable. The submission made before us is that in view of the fact that offences punishable under Sections 323 and 325 I. P. C. are compoundable. and section 149 I. P. C. creates only vicarious liability, a person charged under Sections 323/149 and 325/149 I. P. C. should not, for the purposes of compounding those offences, be treated differently from a person charged under Section 323 or Section 325 I. P. C. simpliciter. It has been contended that a person charged under Section 322/149 I. P. C. cannot be regarded to have committed a more grave offence than a person charged under Section 323 I. P. C. simpliciter.

9. Normally a person who is charged under section 323/149 or section 325/149 I. P. C. is also charged under Section 147 I. P. C. That was so in in the present case also. The trial court, after arriving at the conclusion that the accused persons were guilty of the offence of rioting and also of the offences punishable under Sections 323/149 and 325/149 I. P. C. chose to convict them under Sections 323/149 and 325/149 I. P. C. only.

10. Before a person can be convicted under Section 223/149 I. P. C. the court has to arrive at the finding that he was a member of an unlawful assembly. To be a member of an unlawful assembly is an offence punishable under Section 143 I. P. C.

11. Therefore, it is clear that when an offence under Section 223 I. P. C. is committed by five persons or more in prosecution of the common object of the unlawful assembly, each one of the accused persons, besides being deemed to have committed the offence of causing hurt, also commits the offence of being a member of an unlawful assembly. Such offence (vide section 143 I. P. C.) falls under Chapter VIII of the Indian Penal Code which deals with offences against public tranquillity. There is, therefore, an obvious distinction between an offence punishable under Section 223/ 149 I. P. C. and an offence punishable under Section 223/34 I. P. C. or under Section 223 I. P, C. simpliciter.

12. There can be no doubt that Section 149 I. P. C. creates a distinct offence. That is the consistent view taken by the Supreme Court. In this connection reference may be made to the cases of-

a) Nanak Chand v. State of Punjab : 1955CriLJ721 .

b) Suraj Pal v. State of Uttar Pradesh : 1955CriLJ1004 .

c) Lakhan Mahto v. State of Bihar : 1966CriLJ1349 .

13. In the case of Nanak Chand : 1955CriLJ721 the appellant had been charged under section 302/149 I. P. C. but not under Section 302 I. P. C. simpliciter. It was held that upon failure of the charge under Section 302/149 I. P. C., he should not be convicted under Section 302 I. P. C. simpliciter on the charge of murder. The appeal was allowed and the case was remanded to the Court of Session for retrial in accordance with law.

14. In the case of Suraj Pal. : 1955CriLJ1004 twenty accused persons (including Suraj Pal appellant) were convicted and sentenced by the trial Court for the offence of rioting and also under Sections 302/149. 307/149. and 323/149 I. P. C. On an appeal being filed the conviction and sentences of ten accused persons only were maintained for the offence or rioting. Suraj Pal and nine others were convicted and sentenced for the offence of rioting, Suraj Pal alone was convicted and sentenced for the offences punishable under sections 302 and 307 I. P. C. simpliciter while the remaining nine accused persons who had been convicted by the trial court were convicted and sentenced under Section 323/149 I. P. C. only and were acquitted for the offences punishable under Sections 302/149 and 307/149 I. P. C. It was held by the Supreme Court that Suraj Pal (the sole appellant before the Supreme Court) could not be convicted under sections 302 and 307 I. P. C. simpliciter. His appeal was, therefore, allowed to that extent.

15. In the case of Lakhan Mahto : 1966CriLJ1349 the appellants (eleven in number) were convicted by the Court of Session for rioting and under Section 302/149 I. P. C. and for certain other offences. Lakhan Mahto who was also charged under Section 302 I P. C. simpliciter was acquitted of that charge. On an appeal being filed on behalf of the accused persons the High Court set aside the conviction and sentence of all the appellants for the offences of rioting and those punishable under Sections 302/149 and 326/149 I. P. C. However, it altered the conviction of Lakhan Mahto only from one under Section 302/149 to a minor offence punishable under Section 326 I. P. C. simpliciter. The Supreme Court set aside the conviction of Lakhan Mahto under Section 326 I. P. C. simpliciter.

16. It was held in the case of Suraj Pal. : 1955CriLJ1004 that Section 149 I. P. C. created a distinct head of criminal liability. It was held in the remaining two cases that section 149 I, P. C. creates a distinct offence. The two expressions, to wit. 'a distinct head of criminal liability' and 'a distinct offence' mean one and the same thing - vide Willie (William) Slaney v. State of Madhya Pradesh : 1956CriLJ291 .

17. The reasons given in the three cases mentioned above were as follows:

1) When a person is charged under Section 302 I. P. C. simpliciter. it means that he is being tried for something done by him. The ingredients of the offence are that he intentionally or knowingly committed the offence of murder. On the other hand when a person is charged under Section 302/149 I. P, C. all that the prosecution need prove is that the said person was a member of an unlawful assembly, and that in prosecution of the common object of that assembly a murder was likely to be committed and was committed by one or more members of that unlawful assembly.

2) A person could not be convicted for an offence for which he was not charged.

3) The appellant would be clearly prejudiced when he was to be convicted under Section 302 I P. C. simpliciter (or under section 326 I. P. C. simpliciter) on the basis of a charge under Section 302 read with section 149 I P. C. He was required to answer the charge that he was a member of an unlawful assembly, a member of which committed the murder in prosecution of the common object of the unlawful assembly. He was not required to answer the charge that he himself - by himself or along with others - had committed the offence of murder.

18. Section 149 I. P. C. no doubt provides for creating vicarious liability. That was the view taken by the Supreme Court also. However, the main ingredient of the charge under Sections 149 I. P. C. against the accused person is that he was a member of an unlawful assembly, one or more members of which committed some offence. Section 34 I. P. C. also provides for vicarious liability, but that is in a case where some act is done in furtherance of the common intention of all. Although the criminal act is done by all the persons charged but in view of the fact that it is done in furtherance of the common intention each of such persons is liable for that act in the same manner as if the whole of it had been done by him alone. There is, therefore, a good deal of difference between the nature of vicarious liability created under Section 34 I. P. C. and that created under Section 149 I. P, C. It was for this reason that it was held in the case of : 1956CriLJ291 (supra) that where a charge under Section 302/34 I P. C. had been framed against the appellant but there was no charge under Section 302 I. P. C. simpliciter against any of the accused persons, the appellant could, on the basis of the evidence led against him, be convicted under Section 302 I. P. C. simpliciter.

19. In spite of there being this basic difference between section 34 and Section 149 I. P. C. the fact remains that to a certain extent these two sections overlap. It was observed by the Privy Council in the case of Barendra Kumar Ghosh v. Emperor .

There is a difference between object and intention for though the object of an unlawful assembly is common, the intentions of the several members may differ and indeed may be similar only in the respect that they are all unlawful while the element of participation in action which is the leading feature of Section 34. is replaced in Section 149 by membership of the assembly at the time of the committing of the offence. Both Sections deal with combinations of persons, who become punishable as sharers in an offence. Thus' they have a certain resemblance and may to some extent overlap, but Section 149 cannot at any rate relegate Section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all.

20. The argument advanced in that case before the Privy Council that Section 149 I. P. C. was otiose was repelled with the following observations:..in any case it creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more persons having a common object viz.. one of those named in Section 141 (Queen v. Sabed Ali (1873) 11 Ben. LR 347) and then the doing of acts by members of it in prosecution of that object.

21. To the same effect are the observations made by Chandrasekhara Aiyar, J. in the case of : 1956CriLJ291 (supra). After quoting with approval the case of , the learned Judge observed:.there is much difference in the scope of applicability of sections 34 and 149 though they have some resemblance and are to some extent overlapping.

The two sections are again compared and contrasted in AIR 1954 SC 204. Section 34 does not by itself create any offence, whereas it has been held that Section 149 does. In a charge under Section 34 there is active participation in the commission of the criminal act; under Section 149, the liability arises by reason of the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime.

The overlapping arises in those case where two or more persons commit a murder in furtherance of the common intention, but it is not possible to say which of them was responsible for the fatal injury, or where any one injury by itself was responsible for the death. There may also be a case where it is known that out of the assailants one in particular was responsible for the fatal injury and the others are sought to be made liable for the result owing to the common intention involved.'

22. It is because of the fact that Sections 34 and 149 I. P. C. do to a certain extent overlap that it has been held by the Supreme Court in the case of Mohan Singh v. State of Punjab : AIR1963SC174 that where five persons were charged with substantive offences read with Section 149 some were acquitted thus rendering the number of accused persons less than five, it is possible to convict, oh the basis of the special circumstances of the case and the evidence led in it. the remaining accused persons for the substantive offence read with Section 34 I. P. C. The appellants in that case were charged under Section 302/149 I. P. C. but because of the reason that some of the accused persons had been acquitted and the number of those who could be convicted was less than five, the conviction of the remaining accused persons was altered to one under Section 302/34 I. P. C. In doing so it was observed by Gajendragadkar J. (as he then was) as follows:

That inevitably takes us to the question as to whether the appellants can be convicted under Section 302/34. Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of an combination of persons sharing the same common intention is one of the features of section 34 In some ways the two sections are similar and in some cases they may overlap. But. nevertheless, the common intention which is, the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different may vary in their character, but they are all actuated by the same common intention. It is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. Emperor . common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.

23. Section 149 I. P. C. does not provide for any uniform punishment. Read section 302 the punishment can be death or imprisonment for life. On the other hand, read with section 323 the punishment cannot exceed one year's rigorous imprisonment. However, that can never imply that section 149 does not, create a separate head of liability and will not be an offence distinct from the offence for which punishment can be awarded.

24. There is no direct case of the Supreme Court on the point which has been raised before us. However, from what has been observed by the Supreme Court in so many cases it is clear that Section 149 I. P. C. creates a distinct offence, one of the ingredients of which is being member of an unlawful assembly, which by itself is an offence punishable under section 143 I. P. C. The offence under section 143 I. P. C. not being compoundable. it is clear that an offence punishable with the aid of section 149 I P. C. would also not be compoundable under section 345 Cr. P. C.

25. With great respect we agree with the view taken in the case of 1968 Cri LJ 1342 (All) (supra) that-

1) Section 149 I P. C. creates vicarious liability.

and

2) an offence punishable under Section 147 I. P. C. is not compoundable. The vicarious liability created under Section 149 I. P.C. is however basically different from the vicarious liability created under Section 34 I. P. C. although to a certain extent the two provisions contained in the Indian Penal Code creating vicarious liability overlap.

26. Our answer to the question referred by the learned single Judge is that Section 149 I. P. C. creates a separate and distinct offence and that an offence punishable under section 323/149 I. P. C. is. therefore, not compoundable,

S. Malik, J.

27. The question which has been referred to this Full Bench by the Hon'ble the Chief Justice in view of the order D/- 640-1970 of B. N. Lokur. J. is 'whether the decision of the Division Bench of this Court in 1968 Cri LJ 1342 (All) which implies that the charge under Section 323 of the Indian Penal Code being compoudable, the offence under Section 323 read with Section 149 of the Indian Penal Code can be compounded, is correct.'

28. The learned Single Judge felt the necessity of referring the question to a Full Bench during the hearing of Criminal Revn. No. 734 of 19(59 (Shabbir Khan v. Mohammad Ismail).

29. In 1968 All WR (HC) 632 : 1968 Cri LJ 1342 the relevant facts were that the accused were charged under Section 147 of the Indian Penal Code and under section 323 read with Section 149 of the Indian Penal Code. The parties filed a compromise before the learned Magistrate who tried the case. As an of fence punishable under section 323 of the Indian Penal Code is compoundable. because of the compromise the learned Magistrate allowed the whole case to be compounded and acquitted the accused of the charge under Section 323 read with Section 149 of the Indian Penal Code and also of the charge framed for an offence punishable under Section 147 of the Indian Penal Code. The learned Magistrate decided the case in view of the law laid down by Takru. J. in Ramesh Chandra v. State 1966 All WR (HC) 606, The Division Bench while deciding the case 1968 Cri LJ 1342 (All) overruled the view taken by Takru J. and held that though the learned Magistrate had rightly allowed the offence punishable under Section 323 read with Section 149 of the Indian Penal Code to be compounded, he erred in acquitting the accused of the charge under Section 147 of the Indian Penal Code also. The reasons given by the Division Bench are : 'As al-ready stated earlier, the respondents were also charged under Section 323 read with Section 149 I. P. C. . Section 149 does not create a new offence but makes a member of an unlawful assembly vicariously liable for offences committed by others in furtherance of the common object. No separate sentence has been prescribed under that Section This section falls under Chapter VIII of the I. P. C. relating to offences against public tranquillity and is not compoundable. (See tabular statement of offences mentioned in Schedule II. appended to the Cr. P. C.). The charge under section 323, I. P C. is compoundable, and the Magistrate has rightly accepted the compromise filed by the complainant and the respondents, and acquitted the latter of that offence. In the circumstances, fresh trial on the charge under section 149 I. P. C., would be unnecessary.'

30. For reasons which shall be presently discussed. I find myself unable to agree with the observations made by the Division Bench in 1968 Cri. LJ 1342 (All.)

31. Section 149 is in Chapter VIII of the Indian Penal Code. Chapter VIII of the Indian Penal Code deals with offences against the public tranquillity. It is significant to note that, however, minor in nature the offence may be. if the offence is one committed against the public tranquillity, the same has been made not compoundable. In this connection Sections 159 and 160 of the Indian Penal Code relating to affray may be noted. Section 159 lays down that even when two persons, by fighting in a public place, merely disturb public peace, they become guilty of committing an affray, an offence punishable only with imprisonment not exceeding one month, or with fine not exceeding rupees one hundred, or with both. It may be pointed out that it does not matter whether actually any injury is caused by those who fight in a public place, once it is proved that it had resulted in disturbing the public peace, the offence is complete. . An offence punishable under section 323. of the Indian Penal Code which does not fall under Chapter VIII is punishable for a term which may extend to one year or with fine which may extend to one thousand rupees, or with both. In order to make out an offence punishable under Section 323 of the Indian Penal Code it must be proved that simple hurt was actually caused voluntarily. So from the point of view of the victim who has suffered for these offences and the guilty person who committed these offences, an offence under Section 323 of the Indian Penal Code could not be said to be less serious than an offence punishable under Section 150 of the Indian Penal Code. But even then while Section 323 of the Indian Penal Code has been made compoundable by the Legislature, an offence punishable under Section 160 of the Indian Penal Code is not compoundable (vide Section 345 of the Code of Criminal Procedure and the tabular statement given in schedule II of the Code of Criminal Procedure showing which offences are compoundable).

32. The Legislature has taken a very serious view and has attached special importance to offences against public tranquillity, enumerated in Chapter VIII of the Indian Penal Code, however, simple or minor in nature the part played by a particular accused may have been during the commission of the offence. All such offences irrespective of the seriousness of the offence and the punishment proved for in the Code, have been made not compoundable.

33. 'Unlawful assembly' has been defined in section 141 of the Indian Penal Code. An 'assembly' has been designated as an 'unlawful Assembly' in law if it consists of five or more persons whose common object is found to be covered by one or more of the five clauses enumerated in section 141 of the Indian Penal Code.

34. Section 142 of the Indian Penal Code lays down. 'Whoever being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly'. From the language of this section it appears that if a person intentionally joins an unlawful assembly as defined in Section 141 of the Indian Penal Code or continues in it knowing the facts which render that assembly unlawful, he also becomes a member of the unlawful assembly.

35. It may also be pointed out that section 143 of the Indian Penal Code makes the more membership of an unlawful assembly a punishable offence. Once it is proved that an accused was a member of an unlawful assembly within the meaning of Sections 141 and 142 of the Indian Penal Code, he becomes liable to be convicted and sentenced under Section 143 of the Indian Penal Code even though he may have been unarmed and no force or violence was used by the unlawful assembly or by any member or members of that assembly. It is not necessary to deal in detail with all the provisions of Chapter VIII of the Indian Penal Code relating to an unlawful assembly. It may be observed from what has been discussed that an offence committed by an accused under section 323 read with section 149 of the Indian Penal Code could not be said to be less serious in nature than an offence punishable under Section 143 of the Indian Penal Code.

36. It is apparent from the Sections in Chapter VIII of the Indian Penal Code relating to offences committed by a member or members of an unlawful assembly that where the offence committed falls within the definition of offences under various other provisions of the Indian Penal Code not covered by Chapter VIII and not punishable thereunder, has been made a distinct offence with the help of section 149 of the Indian Penal Code and punishable as provided for in the relevant section of the Indian Penal Code defining the offence and providing punishment for the same as if the offence was committed by the accused himself who was a member of the unlawful assembly irrespective of the fact as to whether he himself had actually committed it or not provided it is proved that the offence was committed by one or more members of the unlawful assembly in furtherance of the common object of the unlawful assembly or that the members of the unlawful assembly knew that it was likely to be committed in prosecution of the common object of the unlawful assembly. It is to be noted that each one of such offences, for which an accused is found guilty under Section 149 of the Indian Penal Code or read with Section 149 of the Indian Penal Code, becomes an offence against the public tranquillity and. therefore, becomes an offence distinct from the substantive offence for which the person found guilty has been held to be vicariously liable with the help of Section 149 of the Indian Penal Code. Therefore, an offence punishable under Section 323 of the Indian Penal Code simpliciter which falls under Chapter XVI (offences affecting the human body), when becomes an offence punishable with the help of or read with section 149 of the Indian Penal Code, becomes an offence against the public tranquillity also under Chapter VIII. In my view, therefore, after an accused is held guilty under section 323 read with Section 149 of the Indian Penal Code, it becomes an offence distinct from an offence punishable under Section 323 of the Indian Penal Code simpliciter. The two sections cannot be separated and it could not be said that a person convicted under Section 323 read with Section 149 of the Indian Penal Code had merely committed an offence punishable under Section 323 of the Indian Penal Code and by separating the two Sections the offence punishable under Section 323 of the Indian Penal Code could be permitted to be compounded.

37. I am supported in the view taken by me by the observations made by the Supreme Court in : 1955CriLJ721 . Their Lordships observed 'It was urged by reference to section 40 I, P. C. that section 149 cannot be regarded as created an 'offence' because it does not itself provide for a punishment. Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore the appropriate punishment section must be read with it. It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it.' In : 1966CriLJ1349 their Lordships again observed 'In this connection the High Court has taken the view that Section 149 I. P. C. does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability ... In our opinion, the view taken by the High Court is correct.' I may also refer to the following observations of their Lordships of the Supreme Court in : 1967CriLJ828 : 'If a person is charged with an offence, then unless there is some provision for composition of it the law must take its course and the charge enquired into resulting either in conviction or acquittal.'

38. For the purposes of this case, the provisions of Section 345 of the Code of Criminal Procedure are also relevant. A perusal of section 345 of the Code of Criminal Procedure will show that only offences specified in section 345 of the Code of Criminal Procedure can be compounded in the manner specified therein. It is to be noted that no offence covered by the provisions of section 149 of the Indian Penal Code falls within the purview of section 345 of the Code of Criminal Procedure. Sub-section (7) of Section 345 of the Code of Criminal Procedure lays down, 'No offence shall be compounded except as provided by this Section.' The intention of the Legislature has further been made clear by including section 149 of the Indian Penal Code in Schedule II of the Code of Criminal Procedure as an offence which is not compoundable.

39. In view of what has been discussed, I would answer the question referred to the Full Bench in the negative.

BY THE COURT

40. Our answer to the question referred t6 us is in the negative, as in our view Section 149 of the Indian Penal Code creates a separate and distinct offence and, therefore an offence punishable under Section 323 read with Section 149 I. P. C. is an offence distinct from an offence punishable under Section 323 I P. C. (simpliciter) and is not compoundable.

41. Let the records of the case be returned to the Bench concerned with our answer.


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