Compounding of Offences, and Withdrawal from Prosecution
Chapter Fifty-Four
Syllabus topic 3.1, "Mode of Taking Evidence and General Provisions as to Inquiries and Trials - Section 266 to 352"
Pages 356 to 362 of 699
In one line
Some offences are private enough that the law lets the injured man settle them; and separately, the Public Prosecutor may drop a case with the Court's consent.
In exam wording: section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lists the offences that may be compounded, and by whom, with and without the permission of the Court; section 360 permits the Public Prosecutor, with the consent of the Court, to withdraw from a prosecution before judgment.
Why the law has this at all
A criminal case is brought in the name of the State, not the complainant. That is the general rule, and it has a good reason: a crime is a wrong to the public order, and if the victim could call it off, the rich accused would simply buy his way out of every case.
But the rule is too wide at its edges. A quarrel between neighbours ends in a slap and a case of hurt. A brother-in-law is accused of defamation. A shop assistant took goods and has returned them. Prosecuting these to a verdict serves nobody. The parties have settled; the Court's time is spent on a dispute that no longer exists.
So the Sanhita draws a line and prints it as a table. On one side, offences private enough that the injured person may compound them himself. On the other, offences serious enough that he may compound them only if the Court permits. And everything not in either table is not compoundable at all, which is what section 359(9) says.
Section 360 is a different power belonging to a different person. Compounding is the victim's; withdrawal is the prosecutor's, exercised with the Court's consent, and now only after the victim has been heard.
Some words this chapter uses
To compound an offence is for the person wronged to agree to settle it, with the result stated in section 359(8): an acquittal.
Composition is the settlement itself.
Withdrawal from prosecution is the prosecutor's abandonment of the case, in whole or as to some offences.
Legal representative in section 359(4)(b) has the meaning given in the Code of Civil Procedure, 1908.
Section 359(1): compoundable without the Court
These offences under the Bharatiya Nyaya Sanhita, 2023 may be compounded by the person named, with no permission required.
| Offence | BNS section | Who may compound |
|---|---|---|
| Enticing or taking away or detaining with criminal intent a married woman | 84 | The husband of the woman and the woman |
| Voluntarily causing hurt | 115(2) | The person to whom the hurt is caused |
| Voluntarily causing hurt on provocation | 122(1) | The person to whom the hurt is caused |
| Voluntarily causing grievous hurt on grave and sudden provocation | 122(2) | The person to whom the hurt is caused |
| Wrongfully restraining or confining any person | 126(2), 127(2) | The person restrained or confined |
| Wrongfully confining a person for three days or more | 127(3) | The person confined |
| Wrongfully confining a person for ten days or more | 127(4) | The person confined |
| Wrongfully confining a person in secret | 127(6) | The person confined |
| Assault or use of criminal force | 131, 133, 136 | The person assaulted or against whom force was used |
| Uttering words with deliberate intent to wound religious feelings | 302 | The person whose religious feelings were to be wounded |
| Theft | 303(2) | The owner of the property stolen |
| Dishonest misappropriation of property | 314 | The owner of the property misappropriated |
| Criminal breach of trust by a carrier, wharfinger and the like | 316(3) | The owner of the property concerned |
| Dishonestly receiving stolen property knowing it to be stolen | 317(2) | The owner of the property stolen |
| Assisting in the concealment or disposal of stolen property | 317(5) | The owner of the property stolen |
| Cheating | 318(2) | The person cheated |
| Cheating by personation | 319(2) | The person cheated |
| Fraudulent removal or concealment of property to prevent distribution among creditors | 320 | The creditors affected |
| Fraudulently preventing a debt or demand being made available to creditors | 321 | The creditors affected |
| Fraudulent execution of a deed of transfer with a false statement of consideration | 322 | The person affected |
| Fraudulent removal or concealment of property | 323 | The person affected |
| Mischief, where the only loss or damage is to a private person | 324(2), 324(4) | The person to whom the loss or damage is caused |
| Mischief by killing or maiming an animal | 325 | The owner of the animal |
| Mischief by injury to works of irrigation by wrongfully diverting water, private loss only | 326(a) | The person to whom the loss or damage is caused |
| Criminal trespass | 329(3) | The person in possession of the property |
| House-trespass | 329(4) | The person in possession of the property |
| House-trespass to commit an offence other than theft punishable with imprisonment | 332(c) | The person in possession of the house |
| Using a false trade or property mark | 345(3) | The person to whom loss or injury is caused |
| Counterfeiting a property mark used by another | 347(1) | The person to whom loss or injury is caused |
| Selling goods marked with a counterfeit property mark | 349 | The person to whom loss or injury is caused |
| Criminal intimidation | 351(2), 351(3) | The person intimidated |
| Insult intended to provoke a breach of the peace | 352 | The person insulted |
| Inducing a person to believe himself an object of divine displeasure | 354 | The person induced |
| Defamation, except the cases named against section 356(2) in the second table | 356(2) | The person defamed |
| Printing or engraving matter knowing it to be defamatory | 356(3) | The person defamed |
| Sale of printed or engraved substance containing defamatory matter | 356(4) | The person defamed |
| Criminal breach of a contract of service | 357 | The person with whom the offender contracted |
Compounding of Offences, and Withdrawal from Prosecution
Section 359(2): compoundable only with the Court's permission
These may be compounded with the permission of the Court before which the prosecution is pending.
Compounding of Offences, and Withdrawal from Prosecution
| Offence | BNS section | Who may compound |
|---|---|---|
| Word, gesture or act intended to insult the modesty of a woman | 79 | The woman whom it was intended to insult or whose privacy was intruded upon |
| Marrying again during the lifetime of a husband or wife | 82(1) | The husband or wife of the person so marrying |
| Causing miscarriage | 88 | The woman to whom miscarriage is caused |
| Voluntarily causing grievous hurt | 117(2) | The person to whom hurt is caused |
| Causing hurt by an act so rash and negligent as to endanger human life or personal safety | 125(a) | The person to whom hurt is caused |
| Causing grievous hurt by such an act | 125(b) | The person to whom hurt is caused |
| Assault or criminal force in attempting wrongfully to confine a person | 135 | The person assaulted or against whom force was used |
| Theft by a clerk or servant of property in the master's possession | 306 | The owner of the property stolen |
| Criminal breach of trust | 316(2) | The owner of the property concerned |
| Criminal breach of trust by a clerk or servant | 316(4) | The owner of the property concerned |
| Cheating a person whose interest the offender was bound by law or contract to protect | 318(3) | The person cheated |
| Cheating and dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security | 318(4) | The person cheated |
| Defamation against the President, Vice-President, a Governor, an Administrator of a Union territory, or a Minister in respect of his public functions, on a complaint by the Public Prosecutor | 356(2) | The person defamed |
Compare the pairs across the two tables and the logic appears. Hurt (115) is in the first; grievous hurt (117) is in the second. Theft (303) is in the first; theft by a clerk or servant (306) is in the second. Criminal breach of trust by a carrier (316(3)) is in the first; plain criminal breach of trust (316(2)) and by a clerk or servant (316(4)) are in the second. The graver the injury or the greater the breach of trust reposed, the more the law wants the Court to look at the settlement before allowing it.
Section 359(3) to (9): the rules that govern both tables
Sub-section (3), abetment and attempt. When an offence is compoundable under this section, the abetment of it, or an attempt to commit it where the attempt is itself an offence, or a case where the accused is liable under section 3(5) or section 190 of the Bharatiya Nyaya Sanhita, may be compounded in like manner.
Compounding of Offences, and Withdrawal from Prosecution
Sub-section (4), who compounds for those who cannot. (a) Where the person competent to compound is a child or of unsound mind, any person competent to contract on his behalf may, with the permission of the Court, compound. (b) Where that person is dead, the legal representative as defined in the Code of Civil Procedure, 1908, may, with the consent of the Court, compound.
Sub-section (5), after commitment or during appeal. Where the accused has been committed for trial, or has been convicted and an appeal is pending, no composition shall be allowed without the leave of the Court to which he is committed, or before which the appeal is to be heard.
Sub-section (6), in revision. A High Court or Court of Session acting in revision under section 442 may allow any person to compound any offence which he is competent to compound under the section.
Sub-section (7), the previous convict. No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for that offence.
Sub-section (8), the effect. The composition of an offence shall have the effect of an acquittal of the accused with whom the offence has been compounded.
Sub-section (9), the closing rule. No offence shall be compounded except as provided by this section.
Sub-sections (8) and (9) are the two lines to write in every answer. Composition is not withdrawal and not a discharge: it is an acquittal. And the list is exhaustive, so an offence outside both tables cannot be compounded however willing the parties are.
Section 360: withdrawal from prosecution
The power. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person, either generally or in respect of one or more of the offences for which he is tried.
The consequence, and it turns on the stage. (a) If the withdrawal is made before a charge has been framed, the accused shall be discharged in respect of that offence. (b) If it is made after a charge has been framed, or where no charge is required under the Sanhita, he shall be acquitted.
The first proviso, Central Government cases. Where the offence:
(i) was against a law relating to a matter to which the executive power of the Union extends; or (ii) was investigated under a Central Act; or (iii) involved the misappropriation, destruction of, or damage to property belonging to the Central Government; or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty,
Compounding of Offences, and Withdrawal from Prosecution
and the Prosecutor in charge has not been appointed by the Central Government, he shall not move the Court for consent unless permitted by the Central Government, and the Court shall, before according consent, direct the Prosecutor to produce that permission.
The second proviso, which is new. No Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case.
A worked example
Two neighbours, Anil and Bhaskar, quarrel. Anil slaps Bhaskar and is charged with voluntarily causing hurt under BNS section 115(2). Months later they settle.
Can the case be compounded? Yes. Section 115(2) is in the first table, and the person who may compound is the person to whom the hurt was caused, that is Bhaskar. No permission of the Court is needed.
What is the effect? An acquittal of Anil, section 359(8), not a withdrawal and not a discharge.
Change the injury to a grievous one, BNS section 117(2). Now it is in the second table, and Bhaskar may compound it only with the permission of the Court before which the prosecution is pending.
Bhaskar has died. His legal representative as defined in the Code of Civil Procedure may compound, with the consent of the Court, section 359(4)(b).
Bhaskar is a child. A person competent to contract on his behalf may compound, with the permission of the Court, section 359(4)(a).
Anil has a previous conviction that exposes him to enhanced punishment for this offence. Then no composition is possible at all, section 359(7), whichever table the offence is in.
The case has been committed to the Court of Session. Composition now needs the leave of the Court to which he is committed, section 359(5); and the same is true where he has been convicted and an appeal is pending.
Anil was also charged with attempting the same offence, and with abetment. Those follow the principal offence: they may be compounded in like manner, section 359(3).
They also wish to settle a charge of rioting. They cannot. It is in neither table, and section 359(9) says no offence shall be compounded except as provided by this section.
Now a different case. The State decides that a prosecution should not go on. The Public Prosecutor in charge may, with the consent of the Court, withdraw before judgment, section 360. If the charge has not yet been framed, the accused is discharged; if it has, he is acquitted.
Compounding of Offences, and Withdrawal from Prosecution
The offence was investigated under a Central Act and the Prosecutor was appointed by the State. He may not even move the Court without the permission of the Central Government, and the Court must direct him to produce that permission before consenting, first proviso.
And in every case: the Court shall not allow the withdrawal without hearing the victim, second proviso.
Distinctions
| Compounding, section 359 | Withdrawal, section 360 | |
|---|---|---|
| Whose act | The person wronged | The Public Prosecutor in charge |
| Court's role | None for the first table; permission for the second; leave after commitment or in appeal | Consent, always |
| When | Before the composition is barred by s.359(7); with leave after commitment or during appeal | At any time before judgment is pronounced |
| Effect | Acquittal, s.359(8) | Discharge before charge; acquittal after charge or where no charge is required |
| Victim's voice | The victim is the person compounding | The victim must be heard, second proviso |
| Section 359(1) table | Section 359(2) table | |
|---|---|---|
| Court's permission | Not required | Required |
| Typical entries | Hurt 115(2); theft 303(2); cheating 318(2); criminal trespass 329(3); defamation 356(2) | Grievous hurt 117(2); theft by a clerk or servant 306; criminal breach of trust 316(2); cheating under an obligation 318(3) |
| Bar on composition | Source |
|---|---|
| Offence in neither table | s.359(9) |
| Previous conviction exposing the accused to enhanced or different punishment | s.359(7) |
| After commitment or while an appeal is pending, without leave | s.359(5) |
| Where the person compounding is a child, of unsound mind or dead, without the Court | s.359(4) |
What this does NOT mean
Compounding is not the same as a compromise the Court is told about. It is a defined act with a defined effect: acquittal.
It is not available for any offence the parties choose. Section 359(9) closes the list, and an offence in neither table cannot be compounded whatever the parties agree.
The permission in the second table is not a formality. It is the Court's judgment on whether an offence of that gravity should be settled at all.
Withdrawal is not the prosecutor's alone. It needs the Court's consent, and now an opportunity to the victim to be heard; and in Central Government cases the prosecutor cannot even apply without the Central Government's permission.
And the stage matters in section 360. The same withdrawal produces a discharge before the charge and an acquittal after it.
Quick revision
- 359(1): offences compoundable by the named person, without the Court, the long first table: hurt 115(2), theft 303(2), cheating 318(2), criminal intimidation 351, defamation 356(2) to (4), criminal trespass 329(3) and (4), and the rest.
- 359(2): offences compoundable with the Court's permission, the second table: insult to the modesty of a woman 79, bigamy 82(1), causing miscarriage 88, grievous hurt 117(2), rash acts 125, theft by a servant 306, criminal breach of trust 316(2) and (4), cheating 318(3) and (4), defamation of high functionaries 356(2).
- 359(3): abetment and attempt follow, and so do cases under BNS section 3(5) or 190.
- 359(4): a child or person of unsound mind compounds through one competent to contract, with the Court's permission; a dead person's legal representative with the Court's consent.
- 359(5): after commitment, or while an appeal is pending, only with leave of that Court.
- 359(6): a High Court or Court of Session in revision under section 442 may allow composition.
- 359(7): never where a previous conviction exposes the accused to enhanced or different punishment.
- 359(8): composition has the effect of an acquittal. 359(9): no other offence is compoundable.
- 360: the Public Prosecutor in charge, with the Court's consent, may withdraw before judgment, wholly or as to some offences: discharge before charge, acquittal after. Central Government permission needed in the four listed classes, and produced to the Court. No withdrawal without hearing the victim.
Compounding of Offences, and Withdrawal from Prosecution
Test yourself
1. What is the difference between the two tables in section 359? The offences in the first table may be compounded by the person named without any permission; those in the second may be compounded only with the permission of the Court before which the prosecution is pending.
2. What is the effect of compounding? It has the effect of an acquittal of the accused with whom the offence has been compounded, section 359(8).
3. Can the parties compound an offence not listed in either table? No. Section 359(9) says no offence shall be compounded except as provided by that section.
4. When can an offence never be compounded even though it is listed? When the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for that offence, section 359(7).
5. Who compounds where the person wronged has died? His legal representative as defined in the Code of Civil Procedure, 1908, with the consent of the Court, section 359(4)(b).
6. What does the accused get when the Public Prosecutor withdraws before the charge is framed? A discharge. If the withdrawal comes after the charge is framed, or where no charge is required, he is acquitted, section 360.
7. Must the victim be heard before a withdrawal is allowed? Yes. The second proviso to section 360 forbids a Court to allow the withdrawal without giving the victim an opportunity of being heard.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.