KHAN MOHD. AND OTHERS Vs. STATE OF UP

JUDGEMENT

(1.) THIS is an application in revision against an order of the Magistrate dated 15 -4 -19616, by which he has refused to grant permission for a certain offence being compounded in a case pending before him. The application has been made by five persons, and the case against them is Under Section 147 or 148 and 324 read with Section 149 of the IPC. When the application for the offence being compounded was moved before the Magistrate, the Applicants were careful enough to mention only Section 324 of the IPC for which the permission was sought by them. The Magistrate held, as mentioned in his order itself, that the prosecution evidence was already over and one of the injuries caused was On the vital part of the body, and that he did not consider it proper to grant permission for the offence being compounded in the case. The Applicants went up in revision to the Sessions Judge, who also dismissed the application; and hence this application in revision in this Court.

(2.) AN offence Under Section 147 of the IPC is not compoundable, and the application for compounding the offence should have, therefore, been dismissed on that very account. Reliance in support of the application was placed upon two decisions, Thomas D'Souza and Ors. v. The State of Mysore, AIR 1966 Mys 53 and Ramphal Gope and Ors. v. State of Bihar, 1964 (2) Cr LJ 111. In the earlier of the two cases, the accused were acquitted Under Section 148 of the IPC and yet convicted Under Section 324 read with Section 149. When the matter came up before the High Court, it was pointed oat that once the accused were acquitted of the offence of rioting Under Section 148 of the IPC, they could not be convicted Under Section 324 read with Section 149. If they could be convicted at all, it could be only Under Section 324, and that offence was compound -able with the permission of the court. This case is, therefore, no authority for the proposition that an offence Under Section 147 or 148 may also be allowed to be compounded. In Ramphal Gope v. State of Bihar (supra) the facts are a little confusing. Full facts have not been given in the judgment. 'The charges against the accused, as mentioned in the decision, were Under Section 323 read with Section 34 and Section 147 of the IPC. If the charge against the accused was of rioting Under Section 147, the charge Under Section 323 should have been "read with Section 149". Since it was a charge Under Section 323 read with Section 34, there might not have been more than four persons in the occurrence, and the charge Under Section 147 might have failed on that very account. According to the view taken in the case of Ramphal Gope v. State of Bihar (supra) if a charge Under Section 323 read with Section 34 of the IPC fails on account of the compromise between the accused and the complainant, then the charge Under Section 147 of the IPC would also fail because the common object was to assault. I find it difficult, however, to agree with this view. When an offence is allowed to be compounded, it is only in a very technical sense that the charge for the offence fails, and the accused is not cleared of the allegations against film. All what is done is that the complainant and the accused are allowed to adjust their differences and since the differences between them are adjusted, the proceedings are dropped and the accused is, in a very technical sense, acquitted of the charge against him. When there is a charge Under Section 147 and another Under Section 324 read with Section 149, it is clear that the accused is charged with two distinct offences, one offence is that of rioting punishable Under Section 147, and the other is that of causing hurt punishable Under Section 324 read with Section 149. The latter offence may be compoundable Under Section 345(2) of the Code of Criminal Procedure, but that does not mean that the charge for the offence Under Section 147 of the IPC will fail, merely because the offence Under Section 324 read with Section 149 of the IPC is allowed to be compounded. The rioting and all the ingredients, which go to make out that offence, still stand at their original places and if the allegations in respect' of the same are proved, the offence Under Section 147 of the IPC will have been made out. Even this question does not arise for consideration just at present, as the Applicants have not so far been permitted to compound the offence Under Section 324 of the IPC. The granting of permission for compounding an offence is in the discretion of the trial court. In the present case, the Magistrate has given reasons for disallowing the application. Added to this is the circumstance that one of the offences with which the Applicants were charged is not compoundable. Under these circumstances, the application was rightly rejected, and this application in revision has no force. The application is dismissed.