Compounding of offences and plea bargaining

1. Compounding: meaning

To compound an offence is to settle it by agreement between the person aggrieved and the offender, usually for some consideration, so that the prosecution is not pursued. Crime is a wrong against society, so compounding is allowed only where the law permits: s.359(9) says no offence shall be compounded except as provided by the section. The list is drawn up on the principle that offences mainly affecting private interests (hurt, wrongful restraint, theft, cheating, defamation, criminal trespass) may be settled, while offences affecting the public at large may not.

2. Section 359 (old s.320)

Table 1: compoundable by the person aggrieved without the court's permission (s.359(1)). Examples, with BNS sections as given in the Table:

• voluntarily causing hurt (s.115(2)); hurt or grievous hurt on grave and sudden provocation (s.122(1), (2));
• wrongful restraint and wrongful confinement (ss.126(2), 127(2), (3), (4), (6));
• assault or criminal force (ss.131, 133, 136);
• theft (s.303(2)); criminal breach of trust by a carrier or wharfinger (s.316(3)); dishonestly receiving or concealing stolen property (s.317(2), (5));
• cheating (s.318(2)) and cheating by personation (s.319(2));
• mischief causing loss to a private person (s.324(2), (4));
• criminal trespass and house-trespass (s.329(3), (4));
• using a false trade or property mark (s.345(3));
• criminal intimidation (s.351(2), (3));
• defamation (s.356(2), (3), (4)), except defamation of the high functionaries.

Table 2: compoundable only with the permission of the court before which the prosecution is pending (s.359(2)). Examples:

• word, gesture or act intended to insult the modesty of a woman;
• marrying again during the lifetime of a spouse (s.82(1)), by the husband or wife of the person so marrying;
• causing miscarriage;
• voluntarily causing grievous hurt (s.117(2));
• hurt or grievous hurt by a rash or negligent act endangering life (s.125(a), (b));
• criminal breach of trust (s.316(2)) and by a clerk or servant (s.316(4));
• cheating a person whose interest the offender was bound to protect (s.318(3)), and cheating and dishonestly inducing delivery of property (s.318(4));
• defamation of the President, Vice-President, Governor, Administrator or a Minister on a complaint by the Public Prosecutor (s.356(2)).

3. Rules on compounding

• Abetment, attempt, and joint or group liability (s.359(3)): compoundable in like manner where the main offence is compoundable, including liability under BNS s.3(5) (common intention) and s.190 (unlawful assembly).
• Incapacity or death (s.359(4)): where the person entitled is a child or of unsound mind, a person competent to contract on his behalf may compound with the court's permission; where he is dead, his legal representative may, with the court's consent.
• After committal or during appeal (s.359(5)): only with the leave of the court to which the case is committed or before which the appeal is to be heard.
• Revision (s.359(6)): the High Court or Court of Session may allow compounding.
• Previous conviction (s.359(7)): no compounding if, by reason of a previous conviction, the accused is liable to enhanced or a different kind of punishment.
• Effect (s.359(8)): the composition has the effect of an acquittal of the accused with whom it is made. So s.337 bars a second trial.
• Exhaustive (s.359(9)).

4. Non-compoundable offences settled between the parties

An offence not in either Table cannot be compounded, however willing the victim. But the High Court may quash such proceedings under its inherent power (s.528 BNSS, old s.482 CrPC). In Gian Singh v. State of Punjab, 2012 INSC 419, (2012) 10 SCC 303, a three-Judge Bench held that this power is distinct from compounding and may be used where the dispute is essentially private, such as commercial, financial, civil, matrimonial or family disputes, and the chance of conviction is remote after settlement; it should not be used for heinous offences of mental depravity, murder, rape, dacoity, or offences under special laws such as the Prevention of Corruption Act. Narinder Singh v. State of Punjab, 2014 INSC 217, (2014) 6 SCC 466, applied this to an offence of attempt to murder and laid down guidelines: the court must examine whether the injuries and weapon show a serious offence against society.

5. Withdrawal from prosecution (s.360, old s.321)

Related but distinct: the Public Prosecutor, with the court's consent, may withdraw from prosecution before judgment. Before charge the accused is discharged; after charge, acquitted. Central matters need Central Government permission. New: no court shall allow withdrawal without giving the victim an opportunity of being heard.

6. Plea bargaining (Chapter XXIII, ss.289–300; old ss.265A–265L)

Introduced into the CrPC by the Code of Criminal Procedure (Amendment) Act, 2005, following recommendations of the Law Commission and the Malimath Committee on reforms of the criminal justice system. Before that, the Supreme Court had disapproved of conviction on a bargained plea: Kasambhai Abdulrehmanbhai Sheikh v. State of Gujarat, 1980 INSC 24, (1980) 3 SCC 120.

• Application (s.289): where the police report or complaint discloses an offence other than one punishable with death, life or more than seven years. Excluded: offences affecting the socio-economic condition of the country (notified by the Central Government), and offences against a woman or a child.
• Time (s.290(1)): application within thirty days of framing of charge (new), with an affidavit that it is voluntary and that he has not previously been convicted of the same offence.
• Examination in camera (s.290(4)): the court satisfies itself that the application is voluntary; if so, gives up to sixty days for a mutually satisfactory disposition, which may include compensation to the victim.
• Meeting (s.291): PP, investigating officer, accused and victim (police-report case), or accused and victim (complaint case), with their advocates.
• Report (s.292) signed by all participants.
• Disposal (s.293): compensation to the victim; then probation or admonition (s.401 or the Probation of Offenders Act) if applicable; otherwise, where a minimum sentence exists, half the minimum (one-fourth for a first-time offender); and where none exists, one-fourth of the punishment provided (one-sixth for a first-time offender).
• Finality (s.295): no appeal, except a special leave petition under Article 136 and writs under Articles 226 and 227.
• Set-off of detention (s.297); statements in the application not to be used for any other purpose (s.299); no application to juveniles or children (s.300).

7. Problem

X is prosecuted for cheating Y and dishonestly inducing him to deliver money (BNS s.318(4)). Before evidence begins, they settle and Y wants to compound. Can he? What if X had been convicted of cheating earlier?

Issue. Whether an offence under s.318(4) BNS is compoundable, and on what terms.

Law. Section 359(2) BNSS places s.318(4) in the second Table: compoundable by the person cheated with the permission of the court. Section 359(7) bars compounding where a previous conviction makes the accused liable to enhanced or different punishment. Composition operates as an acquittal (s.359(8)).

Application. Y is the person cheated and may apply to compound. The court will grant permission if the settlement is genuine and voluntary. If X had a previous conviction that would expose him to enhanced punishment under the BNS, s.359(7) prevents compounding; X could then only approach the High Court under s.528 on the Gian Singh principles, since the dispute is a private financial one.

Conclusion. With the court's permission the offence may be compounded and X stands acquitted. If s.359(7) applies, compounding is barred, but quashing under s.528 may still be sought.

How this is examined

For “Explain compounding of offences”, define it, explain the principle behind the list, give five examples from each Table, then the rules in s.359(3) to (9), and end with Gian Singh and Narinder Singh on quashing of non-compoundable cases. For plea bargaining, the exam wants the eligibility in s.289, the thirty-day and sixty-day limits, the sentencing fractions in s.293 and the bar on appeal in s.295.