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A writ petition has been filed before the Kerala High Court challenging, inter alia, the constitutionality of Rules 10-14 of the Kerala Police Rules, 2020 concerning the compounding of offences. The petitioner has argued that these rules violates Articles 14, 19, 21, 39A and 254 of the Constitution.
The 2020 Rules were introduced recently on April 16. The compoundment of offences refer to the settling of certain criminal offences upon an application and the payment of a compounding fee by the accused in certain categories of cases.
Section 126 of the 2011 Act vests with the Station House Officer the power to compound certain non-cognisable offences. Subclause (3) of Section 126 states that the compounding fee payable shall be such be prescribed by the Government and the Station House Officer concerned.
The petition filed by two members of a lawyer's collective, Kerala Abhibhashaka Koottayma, contends that the 2020 Rules concerning the compounding of offences under the Kerala Police Act, 2011 constitutes "an attempt to trespass in to the powers of the Central Legislature." It is also stated to bean attempt to trespass into the activities of the judiciary, "violating the concept of Separation of Powers."
In particular, it is pointed out that Rule 13 “permits the Station house. officer to withhold the registration of the FIR and go for a negotiation of compounding.” The petitioner has raised apprehension that,
"Even in cognizable offences, the registration of the FIR can be put under the cold storage at the whims and fancies of the Sub Inspector or the Station House Officer, violating the Judgments of the Hon'ble Supreme Court, which happens to be the law of the nation."
As per the pettioners, further proceedings would, thereby, depend on the person who would have detected the commission of the offence, leading to a violation of the right to equality under Article 14 of the Constitution.
The petition submits that the offences that have been classified as compoundable deals include those concerning policing, law and order and those involving personal injury.
While this is the case, the 2020 Rules do not envisage a hearing for the victim prior to the compounding of the offences by the authorised officer under the Police Act and the Rules.
As such, it is argued that the provisions concerning the rights of the victims contained in the Code of Criminal Procedure “has been give a go bye, violating the right to be heard and such other rights guaranteed under Article 14,19 and 21 of the Constitution."
The petitioners also highlight that the compounding of an offence under the challenged rules, without adjudication and bypassing the right to consult a lawyer, would be violative of Articles 39A and Article 21 of the Constitution.
The petitioners go on to contend that such an amendment cannot be done by the State Legislature without the assent of the President, thereby entailing a violation of Article 254 of the Constitution.
Additionally, petitioners, Advocates MJ Santhosh and Dipu V, also pray that Section 126(3) of the Kerala Police Act, 2011 itself be declared repugnant to Section 320 of the CrPC and, therefore, unconstitutional.