COMPOUNDABLE & NON COMPOUNDABLE OFFENCE IN INDIA

Compoundable offences

Compoundable offences are those offences where, the complainant enter into a compromise, and agrees to have the charges dropped against the accused. 

·   (complainant  is the one who has filed the case, i.e. the victim), However, such a compromise, should be a "Bonafide," and not for any consideration to which the complainant is not entitled to.

Section 320 of the CrPC looks at compounding of offences

Compoundable offences are less serious criminal offences and are of two different types mentioned in tables in Section 320 of the CrPC, as follows:

1.  Court permission is not required before compounding – Examples of these offences include adultery, causing hurt, defamation criminal trespass.
2.  Court permission is required before compounding – Examples of such offences are causing miscarriage, voluntarily causing grievous hurt, Criminal breach of trust, Marrying again during the life-time of a husband or wife, assault on a woman with intention to outrage her modesty, dishonest misappropriation of property amongst others.

Application for compounding the offence shall be made before the same court before which the trial is proceeding. Once an offence has been compounded it shall have the same effect, as if, the accused has been acquitted of the charges.

Non Compoundable offences

Non- Compoundable offences are some offences, which cannot be compounded. They can only be quashed.

The reason for this is, because the nature of offence is so grave and criminal, that the Accused cannot be allowed to go scot-free. 

• In these types of cases generally, it is the "state", i.e. police, who has filed the case, and hence the question of complainant entering into compromise does not arise.
• Under a non-compoundable offense, a private party as well as the society, both are affected by such offenses. All those offences, which are not mentioned in the list under section (320) of CrPC, are non-compoundable offences.
• In Non-compoundable offense, no compromise is allowed.
• Even the court does not have the authority and power to compound such offense. Full trail is held which ends with the acquittal or conviction of the offender, based on the evidence given.If a non-compoundable offence has been compounded, against the law and the accused has be
• en acquitted based on the same compromise, the High Court has the power to set aside such an order.

Power of High Court under section 482 of CrPC:

Section 482 of CrPC gives the High Court inherent powers to deal with matters in order to;

•   to give effect to any order under CrPC, or
•   to prevent abuse of the process of any Court or
•   to secure the ends of justice. 

If the crime is serious in nature and has a grave impact on the society, the High Court is empowered to quash the proceedings even if the parties have arrived at a compromise.

A High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section.

If it is a civil matter, the wrong is personal in nature and if the parties have resolved the dispute by way of a compromise then the proceedings may be quashed.

No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.

we shall understand it better in the chart given below with the offences

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COGNIZABLE AND NON-COGNIZABLE OFFENCES

Schedule I of CrPC which refers to all the offences under the Indian Penal Code and puts them into cognizable and non-cognizable categories.

Cognizable offence:

• Cognizable offenses are of much serious nature. 
• In a Cognizable offense, the police officer can arrest a person without a warrant. 
• A cognizable offense is defined under section 2 (c) of the CrPC. 
• The moment it is intimated to the police that any offense which is cognizable in nature has been committed in its local jurisdiction, the police are bound to register an FIR under section 154 of the CrPC.  
• The seriousness of the offence leads for maximum punishment. A cognizable offense is an offense which is punishable with imprisonment for 3 years or more. 

• A complaint can also be given to a Magistrate and the Magistrate orders the officer in- charge and forwards the complaint. The officer then registers the FIR. 
• In a cognizable offense, the police can start the investigation immediately after filing the FIR. No permission from the Magistrate is required.
• offenses which are serious in nature examples offences-

1. Waging or attempting to wage war, or abetting the waging of war against the government of India,
2. Murder,
3. Rape, 
4. Dowry Death,
5. Kidnapping,
6. Theft,
7. Criminal Breach of Trust,
8. Unnatural Offenses.

Non Cognizable offence:

• Non Cognizable offenses have been defined under section 2 (I), of Cr.PC. as an offense. 
• A police officer has no authority to arrest without warrant.
• Such offences are minimal offences where the injury done to the society is comparatively small. 
• The aggrieved party expected to file a complaint before criminal proceedings starts.
• There are punishable with imprisonment for less than 3 years or with fine only.
• A police officer cannot arrest without a warrant and such an officer has neither the duty nor the power to investigate into such offences without the authority given by a Judicial Magistrate.

• These offences are not much serious in nature like 

1. Assault,
2. Cheating,
3. Forgery

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ADULTERY - SECTION 497

"Adultery law arbitrary," said the Chief Justice of India, Dipak Misra. 

Section 497 deprives women of dignity and that women are treated as property of her husband. The court said any provision treating women with inequality is not constitutional and it's time to say that husband is not the master of woman. Adultery will remain a ground for divorce, the bench added.

The supreme court of India has struck down 158 years law on Adultery in sec 497 of IPC.

what does  IPC sec 497 say?

497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Background for the judgement 

in October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC. The CrPc Section 182(2) deals with prosecution for offences against marriages.

On 27.09.2018, a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.

Further the court also said that if a person commits suicide due to the adulterous relation of the partner, then it could amount to abetment to suicide if there is sufficient evidence.

Grounds for Divorce?

The existing adultery law under Section 497 gets complicated further in the view of an Amendment Act of 1976. This was the Marriage Laws (Amendment) Act. It makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery

Each religion is governed by its own matrimonial law. Striking down of Section 497 would apply to a Hindu, Muslim, Christian and all other religions in India. However each religion would be governed separately by the respective matrimonial laws.

The Hindu law :  

• Under Section 13 (1) of the Hindu Marriage Act, adultery is described as, " Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse."
• in order to prove adultery, two elements would be necessary-

1. the intention to be adulterous 
2. the opportunity to gratify such an intention. 

• the burden of proof in such cases would lie on the petitioner and it is their duty to show the court that the respondent is guilty.

The Muslim Law: 

• The Muslim Marriage Act does not have any specific provision for adultery. However Section 2 (viii) of the Muslim Marriages Act says that if a man associates himself with a woman of evil repute or leads an infamous life, it amounts to cruelty to the wife.

Kalim Uz Zafar case

the court had held that the term cruelty can be interpreted widely so as to include mental and physical cruelty. Under the concept of Lian in the Islamic laws, when a man accuses a woman of adultery, the wife can bring a claim for dissolution of marriage.

The Allahabad High Court had said that only wives not guilty of adultery can use this concept, and not wives who are in fact guilty. In another ruling the same HC had said that where a man himself committed adultery and then prosecuted his wife for the same, this was a sufficient cause to seek divorce on the grounds of cruelty.

The Christian Law: 

• Section 10(1)(i) of The Divorce Act of 1869 says, "Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery."
• Earlier only a Christian man could file for divorce on the grounds of adultery.
• For a Christian woman to file for divorce on this ground, it either had to be incestuous or coupled with other grounds like desertion or cruelty.

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