GIAN SINGHversusSTATE OF PUNJAB & ANR

                  [2010] 13 (ADDL.) S.C.R. 1034


A                            GIAN SINGH
                                  v.
                     STATE OF PUNJAB & ANR
     (Petition(s) for Special Leave to Appeal (Crl) No.8989 of
                                2010)
B
                      NOVEMBER 23, 2010
    [MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

        Code of Criminal Procedure, 1973:
c
       s.320- Compounding of offences- Prayer for permitting
  compounding of offences punishable u/ss 420 and 120-B /PC
  - HELD: Offence punishable uls 420 is compoundable with
  permission of court, but offence punishable u/s 120-B is a
0 separate offence and since it is non-compoundable, Court
  cannot permit it to be compounded - Court cannot amend the
  statutes and it must maintain judicial restraint in this regard
  - It is the Legislature alone which can amend s. 320 - The
  decision of the Court in the cases of B. S. Joshi, Nikhil
E Mechant and Manoj Sharma require reconsideration by a
  larger Bench - The matter be placed before the chief Justice
  of India for constituting a larger Bench.

       B. S.Joshi vs. State of Haryana 2003 ( 2 ) SCR 1104       =
   (2003) 4 SCC 675; Nikhil Merchant vs. Central Bureau of
F Investigation and Another 2008 (12 ) SCR 236        =
                                                    (2008) 9
  SCC 677; and Manoj Sharma vs. State and Others 2008
  (14) SCR 539 = (2008) 16 SCC 1 - referred to.

                        Case Law Reference:
G       2003 (2) SCR 1104          referred to          para 3
        2008 (12) SCR 236          referred to          para 3
        2008 (14) SCR 539          referred to          para 3

H                              1034
     GIAN SINGH v. STATE OF PUNJAB & ANR.                1035


    CRIMINAL ORIGINAL JURISDICTION : SLP (Criminal) No.          A
8989 of 2010.

    From the Order and Judgment dated 17.09.2010 of the
High Court of Punjab and Haryana at Chandigarh in CRM No.
M-27367 of 2010.
                                                                 B
    Rajiv Kataria (for Delhi Law Chambers) for the Petitioner.

    The following order of the Court was delivered

                            ORDER
                                                                 c
    Heard learned counsel for the petitioner.

     The petitioner has been convicted under Section 420 and
Section 1208, IPC by the learned Magistrate. He filed an
appeal challenging his conviction before the learned Sessions    D
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 alo ng with the main appeal. Thereafter, the
petitioner filed a petitioner under Section 482, Cr.P.C. for     E
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      F
decisions of this Court, all by two Judge Benches. They are
B.S. Joshi vs. Stae of Haryana (2003) 4 SCC 675; Nikhil
Merchant vs. Central Bureau of lnw~stigation and Another
(2008) 9 sec 677; and Manoj Sharma vs. State and others
(2008) 16 SCC 1. In these decisions, this Court has indirectly   G
permitted compounding of non-compoundable offences. One
of us, Hon'ble Mr. Justice Markandey Katju, was a member to
the fast two decisions.

    Section 320, Cr.P.C. mentions certain offences as · H
    1036 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A 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
B 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 nffence and since it is a non-
  compoundable offence, we cannot permit it to be compounded.
c
         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.
D
       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 directly cannot be done
  indirectly. In our, prima facie, opinion, non compoundable
E 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.

       It is true that in the last two decisions, one of us, Hon'ble
  Mr. Justice Markandey Katju, was a member but a Judge
F 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.

G       Let the papers of this case be placed before Hon'ble
    Chief Justice of India for constituting a larger Bench.

    R.P.                            Matter referred to larger Bench.