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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 747 OF 2013 (Arising  out  of  Special  Leave  Petition  (Crl.)  No.4336  (Crl.M.P.No. 3518/2013)

P. Ramaswamy                 ...Appellant

Versus

State (U.T.) of Andaman  & Nicobar Islands …Respondent

O  R  D  E  R

1. Delay  condoned.  The  application  for  impleadment  is  

allowed.

2. Leave granted.  

3.  This  appeal  by special  leave is  directed against  the  

judgment  and  order  dated  13/07/2012  passed  in  Criminal

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Appeal  No.  1/2011  and  the  judgment  and  order  dated  

10/12/2012 passed in  CRA Nos.  11,  12 & 17/2012 by the  

High  Court  of  Calcutta.  By  the  impugned  order  dated  

13/07/2012 passed in  Criminal  Appeal  No.1/2011 the High  

Court converted the conviction of the appellant from Section  

3(1)(xi)  of  the  Scheduled  Caste  and  Scheduled  Tribes  

(Prevention of Atrocities) Act, 1989 (for short, “the SC & ST  

Act”)  to  Section  354  of  the  IPC.   The  High  Court,  

accordingly,  partly  allowed  the  appeal  by  modifying  the  

sentence  imposed  by  the  trial  court  from   rigorous  

imprisonment  for  one  year  and  fine  of  Rs.  3,000/-  to  six  

months  rigorous  imprisonment  and  fine  of  Rs.  3,000/-,  in  

default,  to  suffer  rigorous imprisonment for  three months.  

Thereafter the parties arrived at a compromise. Application  

was  made  to  the  High  Court  for  grant  of  permission  to  

compound the offence. The High Court vide impugned order  

dated 10/12/2012 passed in CRA Nos. 11, 12 & 17/2012 held  

that once the judgment has been delivered by the Court, the  

Court  becomes  functus  officio and  in  the  absence  of  any  

pending  lis,  it  cannot  entertain  the application seeking to  

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compound  the  offence.   The  High  Court  observed  that  

remedy of the parties was to move this Court.

4.  According  to  the  prosecution,  the  complainant  Dr.  

Harold  Charles  (PW-3)  lodged  a  complaint  against  the  

appellant  at  the  Car  Nicobar,  Police  Station  which  was  

registered as FIR No.10 of 2004 under Section 354 of the IPC  

read with Section 3(1)(ix) of the  SC & ST Act alleging that on  

15/3/2004  around  1.30  p.m.  the  appellant  molested  his  

daughter  PW6-the  victim in  his  shop when she  had  gone  

there to buy some eatables.  When the victim came home  

and narrated the incident to him, he rushed to the appellant  

and asked for an explanation. The appellant initially denied  

the incident but later admitted it and begged pardon.     

5. On the basis of the said FIR, investigation commenced.  

On  completion  of  investigation,  charge-sheet  was  filed  

against the appellant. A charge under Section 3(1) (xi) of the  

SC & ST Act was framed against him. No charge was framed  

under Section 354 of the IPC.   The prosecution, in support of  

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its case, examined eight witnesses. The appellant pleaded  

not guilty to the charge and claimed to be tried.  

6.  After  considering  the  evidence   on  record,  the  trial  

court convicted the appellant for offence punishable under  

Section  3(1) (xi) of the SC & ST Act and sentenced him to  

suffer rigorous imprisonment for one year and to pay a fine  

of  Rs.  3,000/-,  in  default,  to  suffer  further  three  months  

imprisonment.   

7.  The appellant carried an appeal to the High Court.  The  

High Court was of the view that there was nothing on record  

to establish that the victim had been singled-out for indecent  

sexual  assault  because  she  is  a  member  of  a  Scheduled  

Tribe.   Hence,  essential  ingredients  of  offence  punishable  

under Section 3(1) (xi) of the SC & ST Act are not proved.  

The  High  Court  was,  however,  of  the  view  that  though  

charge under Section 354 of the IPC was not framed, all the  

ingredients  of  that  offence  were  proved.  The  High  Court  

observed that punishment of offence under Section 354 of  

the IPC is lesser than the punishment provided for Section  

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3(1) (xi)  of the SC & ST Act.   Section 354 of the IPC is a  

lesser  offence  as  compared  to  offence  punishable  under  

Section 3(1) (xi) of  the SC & ST Act and all ingredients of the  

offence  under  Section  354  of  the  IPC  are  present  in  the  

graver offence namely Section 3(1) (xi) of  the SC & ST Act.  

According to the High Court no prejudice would be caused to  

the appellant if he is convicted for offence punishable under  

Section 354 of the IPC which is a minor offence as compared  

to offence punishable under Section 3(1) (xi) of the SC & ST  

Act and also because all the facts constituting the offence  

under  Section  354  of  the  IPC  were  disclosed  in  charge  

framed against the appellant and he was put to notice in  

regard  thereto.   The  High  Court,  therefore,  modified  the  

conviction  and  held  the  appellant  guilty  of  offence  

punishable under Section 354 of the IPC instead of Section  

3(1) (xi) of the SC & ST Act.  Bearing in mind the advanced  

age  of  the  appellant  his  punishment  was  reduced  to  six  

months.   He  was  sentenced  to  a  fine  of  Rs.  3,000/-,  in  

default, to suffer further imprisonment for three months.  

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8. It  appears  that  thereafter  the  appellant  and  the  

complainant  arrived  at  a  compromise.   On  6/8/12  the  

appellant filed an application in the High Court stating that  

he and the complainant and the victim had compromised the  

matter.  Neither the victim nor the complainant is interested  

in sending the appellant to jail.   The appellant further stated  

that  he  was  67  years  of  age.   Due  to  the  said  case  his  

pensionary benefits have been withheld and, therefore, he  

may be granted permission to compound the offence.  The  

complainant also filed an application stating that he and his  

daughter had compromised the case with the appellant and,  

therefore, they may be permitted to compound the offence.  

The victim also filed an application stating that since they  

were residents of the same village and the same locality and  

they had settled the matter, she did not want the appellant  

to be sent to jail.  She prayed that permission be granted to  

compound  the  offence.   The  High  Court  rejected  the  

applications observing that after the appeal was decided by  

it,  it  had  become  functus  officio.   It  cannot,  therefore,  

entertain any application.  The Code of Criminal Procedure  

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vests no power in the High Court to review its judgment and  

the remedy of the parties was to move this Court.

9. In this Court application for impleadment has been filed  

by the complainant Dr. Harold Charles and the victim.  In the  

application it is reiterated that the parties have settled the  

matter  and permission  may be granted to  compound  the  

case.  Affidavits have been filed by the complainant and the  

victim  in  support  of  the  impleadment  application.   The  

application for impleadment has been granted by this Court.  

10. The information  received from the Jailor,  District  Jail,  

Prothrapur (Andaman and Nicobar Islands) shows  that the  

appellant was in jail as undertrial prisoner from 23/03/2004  

to  28/05/2004.   He  surrendered  to  the  Prothrapur  Jail  on  

7/2/2013 and is continuing in jail till date.  The appellant has  

as  of  today  undergone  about  five  and  half  months  

imprisonment.  

11. It  appears  from  the  applications  filed  by  the  

complainant, the victim and the appellant that all of them  

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reside in the same locality.  They have decided to bury the  

hatchet.  They want to live peacefully and, therefore, they  

have arrived at a compromise.  The victim is now about 18  

years of age.  The appellant is about 67 years of age.  As  

already  noted  the  information  received  from  the  Jailor,  

District Jail, Prothrapur (Andaman and Nicobar Islands) shows  

that the appellant has undergone almost the entire sentence  

imposed on him.    He has undergone about five and half  

months imprisonment.  Offence under Section 354 of the IPC  

is compoundable by the woman assaulted or to whom the  

criminal force was used. The victim has in her application  

filed  in  this  Court  prayed  that  permission  be  granted  to  

compound the offence under Section 354 of the IPC.  In the  

circumstances  of  the  case,  we  feel  that  the  prayer  for  

compounding  deserves  sympathetic  consideration.   In  the  

circumstances, without going into the question whether the  

High Court was right in refusing to take compromise on file  

and compound the offence, we deem it appropriate to grant  

permission to compound the offence.  Hence, we permit the  

appellant,  complainant  and  the  victim  to  compound  the  

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offence under Section 354 of the IPC.  The said offence shall  

stand compounded.   As per Section 320(8) of the Criminal  

Procedure Code the composition of this offence shall  have  

the effect of acquittal of the offence under Section 354 of  

the  IPC.   Hence,  the appellant  is  acquitted of  the  charge  

under Section 354 of the IPC. In view of this the impugned  

orders  dated  13/7/2012  and  10/12/2012  passed  by  the  

Calcutta High Court are set aside. If the appellant is in jail,  

he  is  directed  to  be  released  forthwith  unless  otherwise  

required in any other case.    

The appeal is disposed of in the aforestated terms.  

………………………….J. (G.S. Singhvi)

………………………….J. (Ranjana Prakash Desai)

New Delhi  9th May , 2013

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