ORDER
P.K. Tripathy, J.
1. Heard.
2. Petitioners are the accused persons in G.R. Case No. 178 of 1995 arising out of Banpur Police Station Case No. 103/95 for the offences Under Sections 147, 148, 341, 323, 427, 380, 386, 337/149, IPC read with Section 9(b) of the I.E. Act pending in the Court of J.M.F.C. Banpur. In that case, cognizance of the offences Under Sections 147, 148, 323, 336, 337, 427/149, IPC and Section 9(b) of the Indian Explosives Act has been taken. Petitioners have filed this application Under Section 482, Criminal Procedure Code (in short, 'the Code') with the prayer to quash the order of cognizance dated 18-12-1995 on the ground that the parties have amicably settled their dispute outside the Court.
3. During the course of hearing the only question that arises for consideration as to whether a non-compoundable offence can be permitted to be compounded by exercise of inherent power and notwithstanding the bar provided in Sub-section (9) of Section 320 of the Code.
4. Learned counsel for the petitioners argues with reference to the cases of Mohd. Rafi v. State of U.P. (1998) 15 OCR (SC) 1 : (1998 AIR SCW 2349); Basanta Kumar Baral v. State of Orissa (1999) 16OCR78;Surendra Nath Mohanty v. State of Orissa (1999) 17 OCR (SC) 25 : (1999 Cri LJ 3496), Rajendra Kumar Jit v. State of Orissa (1999) 17 OCR 150 that if the parties have compromised and settled their dispute outside the Court and no useful purpose would be served by venturing into a trial, the proper and remedial steps which can be taken is by way of quashing the cognizance in exercise of inherent power.
5. Learned Addl. Standing Counsel relying on the ratio in the cases of Surendra Nath Mohanty (1999 Cri LJ 3496) (supra) and Ram Lal v. State of J & K (1999) Cri LJ 1342 (SC) and Ajaya Kumar Sahu v. State of Orissa (2000) 18 OCR 11 argues that in view of the provisions in Sub-section (9) of Section 320 of the Code when the Statute debars compounding of non-compoundable offences the cognizance order in such a case should not be quashed by invoking the inherent power.
6. In the case of Mohd. Rafi (1998 AIR SCW 2349) (supra) while considering the legality and correctness of the conviction of the appellant for the offencesUnder Sections 323 and 325, IPC, on the statement of the parties and their neighbours the Apex Court permitted them to compound the said offences. It may be noted that offence under Section 323, IPC is compoundable under Sub-section (1) of Section 320 and offence under Section 325 is compoundable under Sub-section (2) of Section 320 of the Code. That decision is thus of no assistance to resolve the disputed issue. On the other hand, in the case of Surendra Nath (1999 Cri LJ 3496) (supra) and Ram Lal (1999 Cri LJ 1342 (SC)(supra) the Apex Court have consistently upheld the position of law that in view of the provision in Sub-section (9) of Section 320 of the Code direction for compounding of the offences which are not compoundable is not permissible under law. In that respect the previous judgments of the Apex Court in the case of RamPujan v. Stateof U.P. (1973) 2SCC 456 : (1973 Cri LJ 1612) and Mahesh Chand v. State of Rajasthan (1988) 1 JT (SC) 618 : (1989 Cri LJ 121) were referred to and it was observed that the course adopted in those cases were not in accordance with law and the Apex Court further held that in the case of Y.Surendra Babu v. State of A.P. (1987) 2 JT (SC) 361 it be treated as per incuriam.
7. In the case of Basanta Kumar Baral (1999 (16) OCR 78) (supra) a Division Bench of this Court on 11-12-98 propounded that a non-compoundable offence can be permitted to be compounded, though in rarest of rare cases, by exercise of inherent power Under Section 482 of the Code. Similar view was expressed by a learned single Judge of this Court in the case of Rajendra Kumar Jit (1999 (17) OCR 150) (supra). The ratio in those decisions are not in conformity with the decision of the Apex Court in the above noted cases of Surendra Nath (1999 Cri LJ 3496) (supra) and Ram Lal (1999 Cri LJ 1342) (supra). On the other hand, taking into consideration all the aforesaid factums this Court in the case of Ajay Kumar Sahu (2000 (18) OCR 11) (supra) has held as follows :-
Learned counsel for the petitioner states that in some decisions of this Court including a Division Bench of this Court has held that compounding of offence of a non-compound-able nature, in exceptional case, can be made in exercise of the inherent power under Section 482, Cr.P.C. It is not necessary to refer to such decisions in view of a recent decision of a three Judges Bench of the Apex Court. In the case of Surendra Nath Mohanty v. State of Orissa (1999) 17 OCR (SC) 25 : (1999 Cri LJ 3496) the Apex Court have propounded that a non-compoundable offence cannot be compounded in view of legislative mandate in Sub-section (9) of Seection 329, Cr.P.C. and if they are not falling in the categories of offences enumerated in Sub-sections (1) and (2) of Section 320, Cr.P.C. Their Lordships have further propounded that contrary ratio in the case of Mahesh Chand v. State of Rajasthan (1998) 1 JT (SC) 618 : (1989 Cri LJ 121) and Y. Suresh Babu v. State of A.P. (1987) 2 JT (SC) 361 be treated as per incuriam.
8. In view of the above settled position of law, on that ground alone, petitioners' application Under Section 482 of the Code is liable to be rejected.
9. Apart from that, this Court may quash a cognizance order if cognizance of the offence is taken illegally or in the absence of evidence to show existence of a prima facie case. There is nothing in the record to show or suggest that in the present case learned Magistrate has taken cognizance of the above offences either illegally or in the absence of a prima facie case. In that respect no argument is advanced by the petitioners
10. In view of the aforesaid reasons, this Court dismisses the application Under Section 482, Cr.P.C.
11. There is nothing in-the record to show that petitioners have already appeared in the Court of J.M.F.C. Banpur. If the matter is pending at the stage of their appearance, because of the stay orders granted by this Court, it is further directed that if the petitioners shall surrender in that Court within a period of fifteen days hence and shall apply for bail learned J.M.F.C. may do well to hear and dispose of such bail application in accordance with law during the course of the day and preferably in the first hour. Registry is directed to immediately send a copy of this order to the Court below.