RAMALINGA IYER Vs. BUDDA VARADARAJULU IYER

JUDGEMENT

(1.) IN this case a complaint was filed by one Ramalingier who is the petitioner before me against a number of accused for defamation and the case was tried by the Sub-Divisional Magistrate of Salem. After the charge had been framed in the case against the accused, the Magistrate dismissed the complaint on the ground that the offence had been compounded. It is contended before me that the Magistrate was in error in thinking that there was any completed composition of the offence in the case. What happened was that some mediators advising the parties induced them to enter into a muchilika. The terms of the agreement are set out by the Magistrate in his order. It says "we agree that you, the panchayatdars should inquire into all our disputes, namely, (1) the one in O.S. No. 53 of 1923 on the file of the Second Additional District Munsif, Salem,(2) the one in O.S. No. 211 of 1922 on the file of the Principal District Munsif, Salem and (3) the one in C.C. No. 30 of 1924 on the file of the Sub-Divisional Magistrate, Salem" that is this case. The arbitrators are asked to make inquiries in regard to these cases and pass a decision within 15 days. No doubt this muchilika is signed by both the parties. As a matter of fact no arbitration took place in accordance with it and no award has been passed by the arbitrators. But it was argued before the Sub-Divisional Magistrate that the very signing of the muchilika amounted to a composition of the offence under Section 500, INdian Penal Code, which was being tried by him and that his jurisdiction was ousted and that he was bound to act under Section 345, Cr. P.C. and pass an order of dismissal. It seems to me that the Sub-Divisional Magistrate has taken wrong view of the position altogether in accepting that argument. The muchilika was only one step towards the composition of the offence between the parties. It is only if the muchilika is carried out and according to its terms an award is arrived at that there will be complete Composition in the case. Till that is done, the mere agreement or muchilika is only, as has been argued before the lower Court, a preliminary step towards composition and not the composition itself. There is nothing whatsoever in the muchilika to show that the parties intended that the mere signing of it was to have the effect of compounding the offence. They expected the arbitrators to act and to make an award in 15 days and on that award being made no doubt the criminal case will be treated as compounded; but till that is done, I cannot see how the case can be treated as compounded at all. As put by Mr. Justice Trevelyan in Murray V/s. Queen-Empress 21 C. 103 : 10 INd. Dec. (N.S.) 701, "the compounding of an offence supposes an arrangement by which the parties have settled their differences and in the more usual acceptance of the term implies that the prosecutor has received some consideration or gratification for dropping the prosecution." At any rate the arrangement must be one by which the parties have settled their differences and not a mere arrangement to settle the disputes in future as the result of some action either by themselves or by the arbitrators and some decision arrived at by themselves or by third parties. IN this case till action is taken by the arbitrators and some decision is arrived at by them it is not possible to hold that the parties settled their differences. There is no question here of two tribunals carrying on the trial of the same case at the same time. The Magistrate had granted an adjournment for 15 days and he was not going on with the case. If within that time the award had been passed, no doubt there would have been a proper composition, of the case but no such award having been passed the arbitration failed and there was nothing more, to be done than for the Magistrate to go on with the case. It must be remembered that criminal cases do not stand on the same footing as civil cases in the matter of settlement. A criminal case is not a matter between parties as a civil case is. It seems to me that a Magistrate is not bound to recognise a reference to arbitration arid wait for the arbitrators to make the award though it will be reasonable to do so. If he does not choose to wait he will not be doing anything illegal. But if he chooses to wait and then there is an award, that award may amount to a compounding of the offence in question and if it is an offence compoundable under Section 345 effect will be given to such compounding. But till the actual compounding takes place the Magistrate is not bound at all to stay his hands but may go on with the trial of the case himself. IN the present case as I have said already, there is nothing in the muchilika to show that the mere giving of the muchilika was to be treated as compounding the offence. IN these circumstances I must set aside the order of the Magistrate and direct him to take the case on to his file and go on with the trial of the case from where he left it off and complete it without further delay.