GAGAN CHANDRA DAS Vs. ABADHUT BEHERA

JUDGEMENT

(1.) THIS revision is directed against the judgment of the Additional Sessions Judge, Bhubaneswar confirming the order of conviction and sentence passed against the Petitioner under Section 504, Indian Penal Code and acquitting him of the charge under Section 294, Indian Penal Code.

(2.) THE prosecution case against the Petitioner may briefly be stated thus: At about noon on 27 -11 -1972 the opposite party was going on the road after finishing his bath in a pond. While going he found the Petitioner who was the Headmaster of the village L.P. School going to the school. Seeing him the opp. party enquired from the Petitioner as to how he was going to the school so late. The Petitioner did not reply to this, but went to his school. Subsequently, the opp. party was sent for by the Petitioner to the school through a school student. The opp. party accordingly went to the school. Immediately thereafter the Petitioner seeing the opp. party shouted 'Sala, who were you to ask me on the road'. The opp. party protested at this. Thereafter, the Petitioner got enraged, abused the opp. party in filthy language, got up from his chair and exposed his private parts to the opp. party by lifting his (Petitioner) cloth.

(3.) MR . B.R. Rao, learned Counsel for the Petitioner argues that the offence under Section 504. Indian Penal Code is compoundable without the permission of the Court. The compromise petition which was filed in the trial Court on 27 -1 -1973 was in respect of both the offences, viz., for the offence under Section 294 as well as for the offence under Section 504, Indian Penal Code. Since the offence under Section 504" Indian Penal, Code is compoundable without the permission of the Court, the moment a compromise petition was filed the learned Magistrate had no jurisdiction to proceed with the trial so far as the offence under Section 501, Indian Penal Code was concerned. The trial of the Petitioner, therefore, by the learned Magistrate under Section 504, Indian Penal Code was without jurisdiction and a nullity. For this proposition Mr. Rao relies upon a decision reported in S Mukherjee v. State : A.I.R 1965 Cal 469. The case dealt with in that decision was one under Section 354, 379 and 323, Indian Penal Code against three accused persons. A compromise petition was filed by the complainant on 15.4 -1964 only signed by the parties which was put up for consideration on 22 -4 -1964. That petition was rejected by the Magistrate on the ground that the offences under Section 3/9 and 454, Indian Penal Code were not compoundable. The accused being absent on that day the Magistrate issued a warrant of arrest against her as the complainant stated before him that the terms of compromise had not materialised. It was submitted on behalf of the accused that she being under the impression that the matter was compromised thought fit not to appear. This was not accepted by the Magistrate. In these circumstances, it was held that the compromise against the accused was effected from the date of its filing, i. e, 15 -4 -1964 and the re -opening of the case against her on 22 -4 -1964 was unwarranted by law. It was also held in that decision that as soon as the offence was compounded by the complainant, that is the person to whom hurt under Section 323. Indian Penal Code was caused it operated as acquittal even if no acquittal order was recorded, because unless the compromise militates against the provision of Section 345(1), Code of Criminal Procedure as to its validity thereunder or if it is invalid in law on the face of it, it becomes effective from the date when it is filed and the accused is acquitted and the Court becomes functus officio. This view also finds support from the decisions reported in Mohd. Mansoor v. Hira Singh : A.I.R. 1959 All 627, Godfrey Meeus v. Simon Dular, A.I.R. 1950 Nag 91 and Bandhu Padhan v. Bamdeb Senapati : 32 (1966) C.L.T. 362. No authority has been cited by the learned Counsel for the opp. party contrary to the view expressed above. In such a position, the contention of Mr. Rao must prevail. Mr. Rao then goes on to argue that the appeal carried by the Petitioner against his order of conviction and sentence under Section 504, Indian Penal Code before the learned Addl. Sessions Judge, Bhubaneswar must be deemed to be nonexistence, in view of the fact that the Petitioner must be held to have been acquitted of the offence under Section 504, Indian Penal Code on the date the compromise petition was filed in the trial Court. The Petitioner's appeal before the Court 'below, so far as the order of the conviction and sentence passed against him under Section 294, Indian Penal Code was concerned, was competent. The learned Add!. Sessions Judge disposed of the appeal on merit and acquitted the Petitioner of the offence under Section 294, Indian Penal Code. This order of acquittal passed in favour of the Petitioner has not been challenged in this Court. Mr. Rao, therefore, contends and that also very rightly that in view of the settled law as indicated above the Petitioner having been acquitted of the offence under Section 504, Indian Penal Code on the date the compromise petition was filed and he being also acquitted in the criminal appeal by the Court below of the offence under Section 294, Indian Penal Code this revision is bound to succeed.