DHARICHHAN SINGH Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application on behalf of three petitioners. It can be disposed of on a very narrow point. The petitioners were convicted as follows: Dharichhan was convicted for the offence under Section 325, I.P.C, and sentenced to four months rigorous imprisonment and to a fine of Rs. 50. The other two petitioners, Ramgati and Lal Bahadur were convicted, the former under Section 323, I.P.C., and sentenced to two months rigorous imprisonment and fine of Rs. 50, and the latter under Sections. 323/109, I.P.C., and sentenced to one month's rigorous imprisonment and a fine of Rs. 25. The occurrence, which took place undoubtedly on 7 March 1938 at about 9 or 10 A.M., was in connexion with a right to put a wall which had been constructed by the complainant three days before on the ridge between the field of the complainant and that of the accused. The wall was said to have been put by the complainant to protect his onion crop. As a result of an altercation the complainant was assaulted with a lathi causing the fracture of his right forearm. Some other assault also took place upon a man called Ramgach who got a bleeding injury on the head. The accused accordingly were put on trial as a result of a police investigation and the case proceeded before Mr. H.K. Khan, a Second Class Magistrate at Arrah.

(2.) ON 6 May 1938 the parties, who are admittedly relations, put in a petition of compromise before the learned Magistrate and they desired the compromise to be recorded and the case to be disposed of without decision on the merits. It should be remembered that so far as two accused are concerned they were only accused for offences under Section 323, I.P.C., which is compoundable without the permission of the Court by the person stated in the third column of the table under Section 345(1), Criminal P.C., i.e. the person to whom the hurt is caused. The learned Magistrate thereafter had no jurisdiction whatsoever to proceed with the cases of these two accused. The offence under Section 325, I.P.C., was also compoundable by the person to whom hurt was caused but with the permission of the Court. The order sheet of the learned Magistrate on this petition of compromise runs as follows: Parties are relations and have arrived at terms and compromised the case. They file a joint compromise petition and another petition praying for permission to compromise the case. I have no reason to reject the compromise but as the Crown has also become a party to the proceedings the record is sent to S.P. through the C.S.I. to inquire if he has any objection. In my opinion the learned Magistrate had no right to send the record of the proceedings, which were of a judicial character, before him to the Superintendent of Police for taking his opinion. The proper course for him was to ask the Prosecuting Inspector to take his instructions from the District Magistrate, or may be from the Superintendent of Police, as to the attitude of the Crown towards the proposed compromise. However, this was done and the Superintendent of Police sent a note to the effect that in view of the grievous nature of the injury and the increasing resort to violence in the district he was opposed to the compromise. This note is at page 14 (bottom) of the record, and also contains notes from his junior officers. Now, the fact that the injury was grievous was obvious to the Magistrate himself, because he had to decide whether the case fell within Section 325 or under any other Section of the Indian Penal Code, and ha had also the injury report before him as well as the oral evidence of the person injured, showing the circumstances under which this particular assault took place. ON a perusal of this note on 21 May 1938, the Magistrate for want of time postponed the case to 26 May. ON that date the complainant, or the injured person, for some reason or other, which it is not necessary to state here, resiled from the compromise, and the Magistrate passed the following order: Heard the parties. Perused the note of the Superintendent of Police. The complainant wants to revoke the compromise and proceed with the case as he and his companions had been badly injured and were not adequately compensated as agreed upon. In the circumstances I allow the case to proceed. It is to be noticed that the Magistrate does not say in this order that he insisted upon the case to proceed because of the note of the Superintendent of Police. It seems to me that the Magistrate was influenced mainly by the fact that the par-pies had resiled from the compromise. If the learned Magistrate had known that in law a composition once arrived at between the parties is complete as soon as it is made, and that it has the effect of acquittal even though one of the parties later on resiles from the compromise, he would not have passed the order of 26 May. The case law on this point is reviewed in Hem Chandra V/s. Girindra Chandra A.I.R. (1921) Cal. 403, where the leading Calcutta and Madras cases on the point have been considered, and it was held in circumstances such as the present that the Magistrate was in duty bound to order an acquittal on the filing of the compromise petition signed by both parties in Court for an offence for which no leave of the Court was required, and the complainant cannot by a subsequent withdrawal of the petition before any order is passed on it, insist upon the case being proceeded with. In the present case I construe the order of the Magistrate of 6 May as having, granted permission to all the accused and the complainant to compromise their case, and I ignore entirely his proceedings by which he sent the records of the case to the Superintendent of Police and obtained) a note from him. The case was not of a character involving a serious breach of the peace, but it was merely a dispute between two neighbors about the erection of a wall. If I were satisfied that the learned Magistrate passed the order of 26 May withholding his sanction because of the note of the Superintendent of Police, I might have passed a different order; but it seems to me that the Magistrate was influenced only by the fact that the parties had withdrawn from the compromise and could be allowed to do so, which was an erroneous view of the law, as I have shown above. I therefore am of opinion that the case ought not to have been allowed to proceed after 6 May 1938, and the subsequent proceedings, must therefore be set aside, with the result, that the accused are entitled to be acquitted by reason of the compromise which they arrived at between themselves and the complainant, which was evidenced by a petition of 6 May 1938, and which must be held to have been accepted by the Court. The fines, if paid, will be refunded. The petitioner Dharichhan is directed to be set at liberty, and the other petitioners will be discharged from bail.