Kuensel, in its yesterday’s story “Increasing illegal entry cases along the border” quoted a prosecutor who said: “Given the risks involved, no one is acquitted if charged with breaching and criminal nuisance and is sentenced under non-compoundable, which means the convict cannot pay in lieu of the prison terms/sentence.” From the report, it seems that Thrimthue is equated with a compoundable offence. Are Thrimthue and compoundable offences the same? If one closely read the relevant provisions, these two doctrines are different.
Thrimthue is an opportunity provided by Section 28 of the Penal Code of Bhutan (PCB) to an accused who has been convicted of a crime to pay money in lieu of imprisonment. This can be applied only if the accused is not a recidivist and accustomed or habitual offender or the conviction is not a felony (Imprisonment of three or more years). Further, Section 73 of PCB provides conditions for the court to determine the eligibility for Thrimthue. This includes “severity of the charges, the defendant’s past criminal record, the potential threat posed to society and the defendant’s age and physical or mental health condition.”
On the other hand, the “compoundable offences” is derived from the common law system which essentially means “those offences where, the complainant (i.e. the victim), enter into a compromise, and agrees to have the charges dropped against the accused for a consideration.” To allow compounding of the offence, first Section 70 requires that the offence must not be a felony. Second, the cases to be compounded must be allowed only “upon being satisfied that the substance or at least a certain part of the wrongful loss or damage or injury to the victim is restored or paid over (S.72).” Thus, the primary basis for the application of compounding of offences is that the accused must be willing to make good the loss or compensate the victim for injury either partially or wholly. This means, there must exist an agreement of concession where the victim gets the benefit of restoring his or her original position or compensated for the injury caused. Additionally, the court is also required to apply Section 73 before allowing the compounding of the offence.
The probability of confusion among people on Thrimthue and compoundable offence may be due to Section 73 as it applies to both. However, Section 73 does not apply to both the terms in the same sense. While Section 73 is the primary ground on which order for Thrimthue is decided in addition to Section 28, it is not the primary premise on which the compounding of offence relies.
In short, Thrimthue is a discretionary authority of the court to allow a person who is convicted for a criminal offence not amounting to a felony or other conditions. It is applied only to the person who is convicted and allows his punishment to be metted through monetary means. Contrarily, compounding of offence is aimed at restoring the damages or injury caused to the victim and not to benefit the accused. Unlike Thrimthue, the victim plays a major role in compounding the offence. But the effect compounding is that the accused also gets acquitted and his charges dropped. Thrimthue is allowed upon conviction whereas compounding of the offence arises once the accused is indicted by the court. Thrimthue and compoundable offences cannot be equated as same as their purpose and objectives are different.
Disclaimer: The views expressed in this article are author’s own.