An accused is, by reason of his previous conviction, liable to enhanced punishment. Can his offence be compounded?

The Governing Provision: Section 320(7) CrPC and Section 359(7) BNSS

The power to compound offences is entirely a creature of statute. It does not exist at common law, and no court, no party, and no amount of private settlement can override the statutory scheme. The complete framework for compounding is laid down in Section 320 of the Code of Criminal Procedure, 1973, whose successor provision is Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Sub-section (7) of Section 320 CrPC enacts an absolute prohibition in the clearest possible language:

"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 such offence."

This provision admits of no discretion, no exception, and no judicial latitude. It is a complete and unconditional bar. The moment it is shown that the accused, on account of a prior conviction, stands exposed to enhanced punishment or a punishment of a different kind for the offence now under trial, the door to compounding is firmly closed — regardless of who seeks to compound, regardless of the gravity of the offence itself, and regardless of whether the offence would otherwise be compoundable under the First or Second Table of Section 320.

The Rationale Behind the Bar

This prohibition reflects a considered legislative judgment about the nature and character of repeat offenders. An accused who commits the same or a similar offence for the second or third time is not simply a private wrongdoer against an individual victim — he is a person who has demonstrated a propensity for crime and who has shown that the earlier punishment of the law did not serve as a deterrent. The law treats such a person differently because, in his case, the criminal act has ceased to be a purely private matter. The State's interest in prosecution, conviction, and punishment is heightened when dealing with a habitual or repeat offender, and it would be a travesty to allow that interest to be defeated by a private bargain between the accused and the victim.

The Supreme Court in Surendra Nath Mohanty v. State of Orissa (AIR 1999 SC 2180) confirmed that the scheme of Section 320 CrPC is complete and exhaustive, and that sub-section (9) specifically declares that no offence shall be compounded except as provided by that section. Sub-section (7), therefore, removes a category of accused persons entirely from the benefit of compounding, not because their offence is non-compoundable in nature, but because of their personal antecedents.

The Enhanced Punishment Provisions: Section 75 IPC and Section 129 BNS

To fully understand the practical operation of this rule, one must look at the provisions that create enhanced punishment for previous convictions. Section 75 of the Indian Penal Code, 1860 provides that whoever, having been convicted of an offence punishable under Chapter XII (offences relating to coins and Government stamps) or Chapter XVII (offences against property) of the IPC with imprisonment of either description for a term of three years or upwards, is subsequently convicted of any offence punishable under either of those chapters with a like punishment, shall be subject to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years.

Under the Bharatiya Nyaya Sanhita, 2023, the corresponding provision is Section 129, which retains the essential structure of Section 75 IPC. The section creates what is, in effect, an aggravated form of the existing offence when committed by a person with a relevant prior conviction — the same act that would ordinarily attract a lesser sentence now exposes the accused to a significantly harsher one.

An Illustration That Brings the Law to Life

Consider this example. A is convicted of theft under Section 379 IPC and sentenced to two years of rigorous imprisonment. After serving his sentence, he commits theft again. On the second occasion, his victim B — moved by sympathy or having been compensated privately — approaches the court and seeks to compound the offence under Section 320(1) CrPC, since theft is ordinarily a compoundable offence (it appears in the First Table).

The court must refuse. The moment the prosecution or the court records show that A is a prior convict who, by reason of that conviction under Section 75 IPC, is now liable to imprisonment which may extend to life — a punishment of a different kind and of enormously greater severity than what an ordinary first-time thief would face — the bar under Section 320(7) operates with full force. The victim's consent becomes irrelevant. The court's willingness to permit the compound becomes irrelevant. The offence cannot be compounded.

Two Limbs of the Prohibition

It is important to understand that Section 320(7) CrPC covers two distinct situations, not one:

First, where the accused is liable to enhanced punishment by reason of the previous conviction. Here the punishment for the same offence is raised in degree — for instance, under Section 75 IPC, what would ordinarily be a sentence of three years may become imprisonment for life.

Second, where the accused is liable to a punishment of a different kind. This covers cases where the nature of the punishment itself changes — for example, from fine to imprisonment, or from simple imprisonment to rigorous imprisonment. A change in the character of the sentence, not merely its duration, equally attracts the bar.

Both limbs reflect the same underlying policy: where the previous conviction has made the accused's position before the law materially more serious than that of an ordinary first offender, compounding cannot be permitted.

The Effect: What Happens to the Prosecution?

Since the offence cannot be compounded, the prosecution must proceed to trial and conclusion. The accused faces the normal criminal process — examination of witnesses, framing of charges, trial on merits — and if convicted, the court must give effect to the enhanced punishment by reason of the previous conviction. The private settlement between the accused and the victim, if any, is not recognised in law for the purpose of ending the prosecution, though it may, in appropriate cases, be placed before the court as a mitigating factor at the time of sentencing — the court is not bound by it but may consider it in the exercise of its sentencing discretion.

A Comparative Summary

The law here embodies a wisdom that transcends the immediate dispute between the parties. A repeat offender is not merely a private wrongdoer — he is a person whom society has marked as warranting special treatment. The private forbearance of a victim cannot neutralise that public interest. The bar under Section 320(7) CrPC is, in this sense, not a procedural technicality but a statement of criminal policy.