P. RAMASWAMY Vs STATE (U.T.)OF ANDAMAN & NICOBAR ISLANDS
Bench: G.S. SINGHVI,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-000747-000747 / 2013
Diary number: 2375 / 2013
Advocates: RAJIV TALWAR Vs
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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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