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Judgment
David Annoussamy, J.—These are two petitions u/s 482; Code of Criminal Procedure The case of the Petitioners is as follows: - In each of
the petitions, a partnership firm consisting of four partners who are related to each other, is concerned. Each of the partnership firms had an
arrangement with the Punjab National Bank for credit, bank guarantee and other facilities. Both firms found themselves in a financial crisis in the
year 1976-77, with the result that they could not repay the amounts borrowed from the Bank. The Manager of the K.K. Nagar Branch of the
Punjab National Bank filed complaints before the Virugambakkam Police Station. The investigation was taken over by the C.B., C.I.D. and upon
the final report filed by them, cases were taken on file by the Sub-Divisional Judicial Magistrate, Poona-mallee, for offences under Ss.120-B and
Section 420, I.P.C. in C.C. Nos. 380 and 381 of 981 respectively. Not satisfied with the complaint filed before the Police the Manager of the
Bank has filed also a civil suit before this Court numbered as C.S.60/77 for the recovery of Rs. 15 lakhs in respect of the same transaction. That
suit ended in a compromise and the decree as per the compromise arrived at by the parties was issued on 28th February, 1983. As per the terms
of the compromise, the firms were to pay back in instalments the amounts due by them and it is reported by the learned Counsel for the Petitioners
that in respect of one case the total amount has been cleared and in respect of the other case about 80% of the amount has been paid. The second
clause of the terms of compromise was that the Manager should withdraw the complaint filed before the police. To that effect, the Manager of the
Bank has written a letter to the Inspector of Police, C.B., C.I.D., requesting him to withdraw the cases. It appears that no step was taken to get
the permission of the Government to withdraw the cases. In these circumstances, the Petitioners have filed these petitions.
It was urged before me that the offence u/s 420, I.P.C. was a compound-able one as it could be seen clearly from the provisions of Section
320, Code of Criminal Procedure and that an offence u/s 120-B, I.P.C. also was a compoundable one, if Section 320(3) is read with Section
120-B of the I.P.C. The learned Public Prosecutor on his side contended that u/s 320(9) of the Code of Criminal Procedure no offence shall be
compounded except as provided by the Section. He contends that it is not provided u/s 320, Code of Criminal Procedure that an offence u/s 120-
B is compoundable,
Before starting the discussion on this point it would be necessary to extract the relevant provisions. Section 320(2), Code of Criminal Procedure
lists the offences which may be compounded with the permission of the court and an offence u/s 420 I.P.C. is listed under this sub-S.320. Section
320(3) reads as follows:
(3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such ""attempt
is itself an offence) may be compounded in like manner
S. 320(9), Code of Criminal Procedure reads as follows:--
(9) No offence shall be compounded except as provided by this section.
S. 120-B of the I.P.C. reads as follows:
120-B. Punishment of criminal conspiracy--
(1) Whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a
term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished
with imprisonment of either description for a term not exceeding six months, or with fine or with both.
S.120-A reads as follows:-
120-A. Definition of Criminal conspiracy-
when two or more persons agree to do, or cause to be done--
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
S.107, Second Part of the I.P.C. reads as follows:
107 - Abetment of a thing--A person abets the doing of a thing, who--
Secondly:-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place
in pursuance of that conspiracy, and in order to the doing of that thing.
It is worth first observing that the sections of the I.P.C. listed in sub-Ss.(2) and (3) of Section 320, Code of Criminal Procedure for purposes of
compounding are not the sections which define the offences, but the sections which indicate the punishment to be meted out. Abetment being
punishable differently according to the offence abetted, sub-S.(3) provides that abetment is compoundable in the same manner as the
corresponding offence. Section 120-B of the I.P.C. is the section which indicates the punishment for conspiracy. As far as Section 120-B is
concerned, there is a distinction between a conspiracy to commit an offence which is dealt with in Section 120-B (1) and a criminal conspiracy
without another offence which is dealt with in Section 120-B(1). We are now concerned only with the first category, viz., a criminal conspiracy to
commit an offence. That section provides that such kind of criminal conspiracy shall be punished in the same manner as the abetment. This would
show that-an offence u/s 120-B(l) is covered by the provisions of sub-S.(3) of Section 320.
On the other hand, if a criminal conspiracy to commit an offence is contrasted with abetment u/s 107(2), I.P.C. one finds that the agreement to
commit an offence will by itself constitute a Criminal conspiracy; whereas for the abetment, in addition to such an agreement, some act or illegal
omission should take place in pursuance of that conspiracy. It is therefore clear than an offence under sub-S.(l) of Section 120-B of I.P.C. is less
important than an offence u/s 107(2), I.P.C. It is a general principle of law (sic) under the greater maxim ''Omne majus continet in se minus''. One
of the Illustrations of the principle can be found in S. 222(2) of the Code of Criminal Procedure as per which a person charged under an offence
may be convicted of the minor offence although he was not charged with it, if facts are proved which reduce the initial offence to a minor offence.
Therefore, an offence u/s 120-B(1) which is of the same kind but of lesser gravity than the one u/s 107(2) in compoundable u/s 320(3) of the
Code of Criminal Procedure Further, in the present case, the Petitioners are accused of having committed the criminal conspiracy to commit an
offence u/s 420, I.P.C. which itself is an offence compound-able. It would be absurd to hold that the offence u/s 120-B(1), I.P.C. for such
conspiracy is not compoundable, when the abetment and the offence itself are compound-able.
However, for these reasons, this Court cannot quash the proceedings pending before the trial Court. It is to be seen whether the parties still
want to compound the offences and the discretion of the u/s 302(2), Code of Criminal Procedure cannot be interfered with. In the result it is held
than an offence u/s 420, I.P.C. is compoundable and it is open to the parties to seek relief accordingly before the trial court.
With these observations the Criminal Miscellaneous Petitions are dismissed.