There has been some confusion with respect to the nature of offence punishable under Section 324 of Indian Penal Code, 1860 ("the IPC"). The question is whether the offence under Section 324 of IPC is a bailable or a non-bailable one, a compoundable or a non-compoundable one. This paper shall analyse the relevant statutory provisions, statutory amendments, Gazette Notifications...
There has been some confusion with respect to the nature of offence punishable under Section 324 of Indian Penal Code, 1860 ("the IPC"). The question is whether the offence under Section 324 of IPC is a bailable or a non-bailable one, a compoundable or a non-compoundable one. This paper shall analyse the relevant statutory provisions, statutory amendments, Gazette Notifications and jurisprudential developments in order to understand how we can deal with the issue.
Section 324 Of Indian Penal Code, 1860
Section 324 of IPC as originally enacted has imprisonment or fine or both for voluntarily causing hurt by dangerous weapons or means. The provision is reproduced hereunder:
"Section 324 of IPC: Voluntarily causing hurt by dangerous weapons or means.
Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
In order to establish whether an offence is a bailable offence or not, it is important to look into the First Schedule of the Code of Criminal Procedure, 1973 ("Cr.PC") in which classification of the offences have been made. The offence under Section 324 of IPC was originally shown as a bailable one. Further, the Table under sub-section (1) and the Table under sub-section (2) of Section 320 of Cr.PC, 1973, lists the offences that can be compounded by the person specified in third column of the said tables. The offence under Section 324 of IPC was originally shown in the Table of compoundable offences. Thus, under the Code, as originally enacted in 1973, an offence punishable under Section 324 of IPC was shown as bailable and compoundable.
The Code Of Criminal Procedure (Amendment) Act, 2005 (Act No. 25 Of 2005)
Section 28(a) of the Cr.PC (Amendment) Act, 2005 made the offence under Section 324 of IPC as "non-compoundable". Further, Section 42(f)(iii) of the Cr.PC (Amendment) Act, 2005, made the offence under Section 324 of IPC as "non-bailable". Though, the Cr.PC (Amendment) Act, 2005 was enacted and published on 23.06.2005, it was to take its effect only from the date appointed by the Central Government by a notification in the Official Gazette.
Further, the Parliament passed the Cr.PC (Amendment) Amending Act, 2006 (Came into force w.e.f. 2nd June, 2006) to amend the Cr.PC (Amendment) Act, 2005 whereby inserted "and different dates may be appointed for different provisions of this Act" in sub-section of Section of the Cr.PC (Amendment) Act, 2005, which would now read:
"(2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act."
In exercise of power conferred by sub-section (2) of Section 1 of the Cr.PC (Amendment) Act, 2005, vide Gazette of India Notification dated 21.06.2006, the Central Government appointed 23rd June, 2006, as the date on which the provisions of the Cr.PC (Amendment) Act, 2005, except the provisions of Sections 28(a), …, 42(f)(iii), …, shall come into force. Consequently, Sections 28(a) and 42(f)(iii) of the Cr.PC (Amendment) Act, 2005, which sought to make the offence under Section 324 of IPC as non-compoundable and non-bailable, respectively, have not yet been brought into force. Hence, the offence under Section 324 of IPC continues as a bailable and compoundable, as it originally stood.
It is pertinent to note that people ignore the Gazette of India Notification dated 21.06.2006 whereby only some provisions of the Cr.PC (Amendment) Act, 2005 were brought into force w.e.f. 23rd June, 2006. Due to the ignorance of this Gazette Notification, in some of the places, the accused persons arrested for offence under Section 324 of IPC are not given bail as a matter of right immediately, despite it is still bailable offence. Further, sometimes, the parties are also not allowed to compound the offence under Section 324 of IPC despite the fact that the offence is still compoundable.
It is, further, pertinent to note that the Hon'ble Supreme Court and several High Courts have erroneously observed in their judgments that after coming into force of the Cr.PC (Amendment) Act, 2005, the offence under Section 324 of IPC is made non-compoundable. Many judicial officers do not allow compounding of offence under Section 324 of IPC, reflecting that the offence is no more compoundable.
The Hon'ble Supreme in Hirabhai Jhaverbhai v. State of Gujarat, AIR 2010 SC 2321, Md. Abdul Sufan Laskar v. State of Assam, (Criminal Appeal No. 1343 of 2008) decided on 25th August, 2008 and Pravat Chandra Mohanty v. State of Odisha, (Cr. Appeal no. 125 of 2021) decided on11th Feb., 2021 has unwittingly observed that after coming into force of the Cr.PC (Amendment) Act, 2005 from 23rd June, 2006, the offence under Section 324 of IPC is made non-compoundable.
The Hon'ble Gauhati High Court in Prabhat Das & others v. State of Tripura & others, 2013 Cr.L.J. 1712 and the Hon'ble Kerala High Court in Bineesh & another v. State of Kerala and another, 2012 Cr.L.J. 4128 have unwittingly observed that the offence under section 324 of IPC was made non-compoundable after the Cr.PC (Amendment Act) 2005 which came into force w.e.f. 31.12.2009. Further, the Hon'ble Patna High Court in Prabhu Mahto & Ors vs State of Bihar, (Criminal Appeal (SJ) No.219 of 2002) decided on 13th April, 2017 has unwittingly observed that the offence under Section 324 of IPC is no more compoundable after the Cr.PC (Amendment Act) 2005 which came into force w.e.f. 23.06.2006.
The Gazette of India Notification dated 21.06.2006 had escaped the attention of the Hon'ble Supreme Court and High Courts. The attention of the Hon'ble Supreme Court and High Courts was not drawn to the Gazette of India Notification dated 21.06.2006 whereby Sections 28(a) and 42(f)(iii) of the Cr.PC (Amendment) Act, 2005 which made Section 324 of IPC as non-compoundable and non-bailable, respectively, have not yet been brought into force.
Date Of Enforcement Of The Cr.PC (Amendment) Act, 2005 (25 Of 2005)
In some judgments, the date of the enforcement of the Cr.PC (Amendment) Act, 2005 has been mentioned as 31st Dec., 2009. It is to be noted that on 31st Dec., 2009, the provisions of Cr.PC (Amendment) Act, 2008 were brought into force and not the provisions of the Cr.PC (Amendment) Act, 2005. The Hon'ble Supreme Court and High Courts were not apprised of the fact that by way of Gazette Notification dated 21.06.2006, the Central Government appointed 23rd June, 2006, as the date on which the provisions of the Cr.PC (Amendment) Act, 2005, except some, came into force.
After analysing the facts, the Cr.PC (Amendment) Act, 2005, Cr.PC (Amendment) Amending Act, 2006 followed by the Gazette of India Notification dated 21st June, 2006 and the judicial pronouncements, it would be clear that, at present, the offence under Section 324 of IPC is bailable and compoundable.
The author is an Assistant Public Prosecutor, Directorate of Prosecution, GNCT of Delhi. Views are personal.
References:
1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973
3. Code of Criminal Procedure (Amendment) Act, 2005 (Act no. 25 of 2005)
4. Code of Criminal Procedure (Amendment) Amending Act, 2006 (Act no. 25 of 2006)
5. Gazette of India Notification dated 21st June, 2006
6. Gazette of India Notification dated 31st Dec., 2009
7. Hirabhai Jhaverbhai v. State of Gujarat, AIR 2010 SC 2321
8. Md. Abdul Sufan Laskar v. State of Assam, (Cr. Appeal No. 1343 of 2008) decided on 25th Aug., 2008
9. Pravat Chandra Mohanty v. State of Odisha (Cr. Appeal no. 125 of 2021) decided on 11th Feb., 2021
10. Prabhat Das & others v. State of Tripura & others reported in 2013 Cr.L.J. 1712
11. Bineesh & another v. State of Kerala and another reported in 2012 Cr.L.J. 4128
12. Prabhu Mahto & Ors vs State of Bihar (Cr. Appeal (SJ) No.219 of 2002) decided on 13th Apr., 2017