1. In this case the accused were charged with offences punishable under Sections 147, 451, 342 and 426, Indian Penal Code, on the ground that on December 18, 1925, they being members of an unlawful assembly pulled down the banka of the complainant Irappa Balappa, and in pursuance of the object of pulling down the banka wrongfully confined him by pushing him into the house and pulled down the banka with the intent to cause wrongful loss to the complainant. The learned Magistrate on consideration of the whole evidence held that the prosecution case was proved. It is not necessary to go into the question whether the application for revision to this Court is beyond time. The delay has been excused and the application has been admitted on January 21, 1929.
2. The first point argued in this application is that on August 7, 1926, an application was made under Section 345 of the Criminal Procedure Code for compounding the offences with which the accused were charged. The application was signed by the complainant and by the accused and also by the pleaders of both the parties, The Magistrate, on August 7, forwarded the application to the Police Prosecutor for opinion. On August 31, the date to which the case was adjourned, no reply was received from the Police Prosecutor and it was again adjourned to September 18, and on October 14, 1926, the Magistrate ordered the case to proceed in effect holding that he was not satisfied that the compromise application was a lawful compromise under Article 345. On October 20 the Police Prosecutor declined to move the District Magistrate for withdrawal of the case. On November 27, 1026, the complainant made an application to the Collector of the District alleging that his signature on the compromise application was taken under threat and that permission should not be given to the compromise if the accused or their pleaders approached the Collector for granting the permission. It is urged before us that the learned Magistrate ought to have granted the compromise application and allowed the composition under Section 345, and reliance is placed on the rulings in Emperor v. Gana Krishna : AIR1914Bom258 ; Sheikh Basiruddi v. Sheikh Khairat Ali (1913) 17 C.W.N. 948 ; Emperor v. J. John I.L.R.(1922) All. 145 ; and Sewa Singh v. Emperor I.L.R.(1893) Cal. 103.
3. In Emperor v. Oana Krishna there was no dispute as to the factum of the compromise. In the present case having regard to the subsequent conduct of the complainant it appears that his consent was obtained by threat and coercion by the accused. Before a composition can be allowed the Court must be satisfied, according to the ruling in Murray v. The Queen-Empress I.L.R.(1893) Cal. 103 that the composition is legal and valid in law. In Sheikh Basiruddi v. Sheikh Khairat Ali there was a second complaint after the complaint with regard to the offence under Section 325 had been already compounded, and it is with reference to the second complaint that it was held that the petitioners could not be again prosecuted either for grievous hurt or house trespass or being members of an unlawful assembly the common object being to commit offences which had been compoxmded. In Emperor v. J. John the Court was satisfied that there was a legal and valid composition. In Sewa Singh v. Emperor it was held that it is the duty of the Magistrate, in each case which is compound-able with his leave, to decide whether he will or will not allow a compromise and the responsibility rests entirely with him, and that where the offence is not of a serious nature and ft compromise is arrived at, at a very early stage, the Magistrate ought to allow the compromise. In the present case the compromise was at a late stage of the case and some of the offences were not compoundable, for the offence under Section 451 was compoundable only with the leave of the Court and the offence under Section 143 which was embodied in the charge or the offence under Section 147 of rioting which was mentioned in the complaint was not compoundable even with the permission of the Court. The learned Magistrate held that as a matter of fact the accused were guilty under Section 447 and not under Section 451. The point, however, remains that with regard to the offence under Section 143 the Magistrate had no jurisdiction to allow the composition. We are not satisfied in this case that there was a lawful composition between the parties, and it would, therefore, follow that the order of the Magistrate allowing the case to proceed is not erroneous.
4. The second point argued, but not specifically taken in the application, is that the offence could not be tried by the Magistrate without the sanction of the Government under Section 197 of the Criminal Procedure Code, and reliance is placed on the ruling in Emperor v. Kalu Mahadu (1926) 29 Bom. L.R. 707 . Section 197 relates to an offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duties. The object of the section is to guard against vexatious proceedings against public servants and to secure the well considered opinion of a superior authority before their prosecution. It has been held in Sankaralinga Tevan v. Avudai Ammal (1916) 17 Cr. L.J. 394 'the test is not whether the particular act is within his powers, but whether he acted in the capacity with which he is clothed. Of course, if he simply uses his position as public servant to commit an illegal act he will not be acting as such public servant' Assuming that the defence of the accused is true, namely, that they went to the scene of the offence in order to prevent an encroachment on Government land, they had no justification to take the law in their own hands by pulling down the banka and confining the complainant, Their obvious duty was to make a report of the proceedings to the higher authorities, and the action of the accused would not fall within their legitimate functions, and it cannot be said that the offences were committed by them while acting or purporting to act in the discharge of official duty. The illegal acts cannot be said to have been committed under colour or in excess of the duty or authority as public servants. See Narayan v. Yeshwant: Dattatraya v. Annappa : AIR1928Bom352 . The decision in the case of Emperor v. Kalu Mahadu relates to an embezzlement committed by a public servant in the discharge of his duty. We think, therefore, that the want of sanction under Section 197 of the Criminal Procedure Code does not operate as a bar to the prosecution of the accused in this case.
5. The last point is with regard to the question whether the accused made a complaint to the Mamlatdar at about 12 o'clock on the day of the offence. It appears from the evidence of Mr. Badami that the accused went and gave an application to him at about 12 o'clock. It appears from the evidence that the accused had their own carts and accused No. 2 had a motor car and it is not improbable that the accused could have gone nine miles and presented themselves before Mr. Badami, the clerk, after the commission of the offence. It appears, however, that as a matter of fact the baaka was demolished. The report which was given by the accused was returned to them on December 21 and the panchnama said to have been forwarded has not been produced before the Court. It further appears that the two accused applied for sanction to prosecute the complainant, and though they were clearly ordered to do so by the Mamlatdar they did nothing of the kind. The prosecution story is proved by the oral evidence in the case, particularly by the witnesses, Exs. 2, 3, 4 and 10, and we think that the accused are properly convicted in this case.
6. On these grounds we discharge the rule.
7. I agree. So far as the question of composition is concerned, the accused are convicted under Sections 143, 447, 342 and 426, Indian Penal Code. The offence under Section 143 is not com-poundable and in any case the trial under that section would have to go on. When we turn to Section 345 it shows that the offences which can be compounded are those in respect of which the prosecution is pending and not the offences of which the accused is 1B29 found guilty. At the time of the proceedings of the application for leave to compound, which was in August 1926, the accused were charged with offences under Sections 147, f 451, 342; and 426, and the offence under Section 451 was only compoundable with the Baker J. leave of the Court, the offence under Section 147 not being compoundable at all. When some offences are compoundable and some are not, it is obvious that there can be no compounding of offences which are not included in Section 345 of the Criminal Procedure Code, and therefore, with regard to those charges, the case must at all events go on. Whatever, therefore, happens as regards the offences under Sections 342 and 426, the case had to go on with regard to the charge of unlawful assembly or rioting under Section 143 or 147, and with regard to the offence under Section 451 the Magistrate had discretion either to allow to compound it or not. Then we have found, so far as regards the compromise application with respect to the other two charges, that there is no legal compounding.
8. The only remaining point which has been taken is as to the necessity of sanction for the prosecution of accused Nos. 1 and 2, who are respectively the Kulkarni and the Revenue Patil of the village. Section 197 refers to a public servant, who is not removable from his office save by or with the sanction of a Local Government, charged in respect of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. That, however, would mean offences which could be committed by public servants only, and hence it has been held that sanction under this section is necessary in those cases only in which the offence charged is an defence which can be committed by a public servant only, and the offence charged must involve as one of its necessary elements that it can be committed only by a person filling that character. See The Municipal Commissioners for the City of Madras v. Major Bell I.L.R.(1901) Mad. 15 and Nando Lal Basak Mitter I.L.R(1899) . Cal. 852.
9. Now the charge against accused Nos. 1 and 2 is that they came to the house of the complainant in order to remove his banka. It may be that accused Nos. 1 and 2, as village officers, may have been acting in their official capacity when they came to the house of the complainant, but the only power which they had, supposing an encroachment had been committed, was to make a report to their superior officers with the view to orders being issued for the removal of the encroachment, and it was no part of the duty of the Kulkarni and the Revenue Patil to compel the person guilty of the alleged encroachment to remove the 182fl encroachment without the orders of higher authority, much less was it any part of their duty to assault him and to remove the encroachment, supposing it to be an encroachment, by force. The moment, therefore, that accused Nos. 1 and 2 took the law in their own hands; and used force towards the complainant, their ;actions cannot be held to be covered by their official position, and therefore, Section 197 has no application.
10. So far as the facts are concerned, this is a revisional application and the Magistrate has considered the evidence at length and there are no reasons for us to take a contrary view.
11. I agree, therefore, that the rule should be discharged.