Distinguish between withdrawal and composition.

Question: Distinguish between withdrawal and composition.

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Answer

The distinction between withdrawal (section 257) and composition (section 320) was discussed by the Hon’ble Kerala High Court in the case of Y.P. Baiju v. State Of Kerala And Ors.[2008 CriLJ 928]. Below given are extracts from this case which are relevant for the discussion.

To elaborate upon what is a composition of a criminal offence, looking at the very fundamentals may be helpful. There is a basic and axiomatic fiction in criminal jurisprudence – that all crimes are offences against the State. There may be personally aggrieved individuals also because of the commission of the crime. But in all crimes, the real aggrieved is and ought to be the State representing the entire polity. Whether it be unmerited acquittal or conviction, the real loser, the aggrieved, fictionally is the State.

The State may condone and compound the crimes. The provisions of Sections 321, 432 and 433, CrPC deal with the powers of the Court to forebear from prosecuting an indictee and not compelling him to suffer the punishment.

The word compound has the meaning “forbear from prosecuting” a crime in exchange of money or other consideration”. This meaning of the term, because of its association with a felony, appears to have led to the use of the expression in an incorrect sense as indicated in (2) above. Be that as it may, what is relevant for our purpose is that compounding is forbearance from prosecuting a crime. It may be for material consideration, it may be for other considerations. Receipt of money or compensation may be one consideration. Piety and forgiveness may be the other. Acceptance of the explanation/justification may be yet another.

For the purpose for which we are concerned, we are interested not in the motivations that prompted a person to forbear from prosecution, we are concerned only with the act of forbearance. Considerations relevant, irrelevant, sublime or coarse may prompt a victim to forbear from prosecution. The Court is concerned only with the willingness of the victim to forbear from prosecution. If he is willing and his decision to forbear is genuine and voluntary the composition has to be accepted when the offence is compoundable without permission.

The interests of society become relevant only in a case where permission of the Court is necessary for composition. In this view of the matter, I have no hesitation to agree that composition known to the law must be held to be a unilateral act on the part of the victim to forbear from prosecution. That decision of his to forbear may be prompted by many a reason, which the Court is not really concerned with ordinarily in a case of composition without permission provided there is willing and voluntary composition.

Section 320, CrPC deals with the composition of offences. Sections 320(1) and (2) are identically worded except for the requirement of consent of the Court. The language of the provision further indicates very clearly and convincingly that the composition contemplated under Section 320, CrPC is a unilateral act and not a bilateral act.

An option is given for the person mentioned in column 3 (which a perusal of the tables will show is essentially the victim) to compound the offence. Telltale indications are thus available from the language employed by Section 320, CrPC that the composition is and can be a unilateral act on the part of the victim. There is nothing in the language employed by Section 320, CrPC to indicate that the composition contemplated under Section 320, CrPC is a bilateral act.

On the other hand, withdrawal is a unilateral act and composition must be held to be a bilateral act, for which permission of the accused is also necessary. If the composition does not pre-suppose consent and willingness of the accused, the victim who has compounded the offence may still have to face the consequence of malicious prosecution.

Section 257, CrPC applies only to summons cases. It applies only to cases instituted on a private complaint. Sections 257 and 320, CrPC do not hence cover the same field. Whether the offences be compoundable or not, withdrawal under Section 257 CrPC is permissible. Many summons offences are non-compoundable under Section 320, CrPC. Whether the offence is compoundable or not, if the prosecution is in respect of a summons case and the prosecution is instituted on a private complaint, the complaint can be withdrawn by the complainant under Section 257, CrPC Section 257 has no application at all in a case instituted on a police report.

Similarly, many compoundable offences under Section 320, CrPC is not a summon offence and therefore Section 257, CrPC can have no application at all. In these circumstances, it must be seen that though there may be overlapping on certain aspects in the sense that prosecution comes to an end in both cases on account of the conduct of the complainant. Section 257 cannot be advantageously pressed into service to understand and assimilate the concept of composition under Section 320, CrPC.

Withdrawal can be done without any reason. Compounding, going by the language, is forbearance from prosecution for any consideration. That distinction in language notwithstanding, it must be held that such distinction does not at all affect the operational dynamics of Section 320, CrPC.

The conclusion in these circumstances appears to be inescapable that composition is and must be held to be a unilateral act. If that be so, a criminal court will not be justified in insisting on a joint application for composition from the accused and the victim. Consequently, it has to be held that the physical appearance of an indictee is unnecessary and cannot be insisted to accept the composition by the victim.

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