1. In this case, a complaint was filed by one Kouti on August 19, 1926, in which she complained that, while she was at her parents' house for delivery, all the accused conspired together to defraud her husband Devba and cheated him behind her back. On September 4, 1926, she made an application to the Magistrate that the complaint was not drafted properly and according to law, and hence it would not be of advantage to her to prosecute the complaint in those circumstances, and, therefore, permission be given to compound the offence under Section 345 of the Criminal Procedure Code and the Magistrate made an order acquitting the accused under Section 345, Criminal Procedure Code. On September 10, 1926, the present complaint was filed by the husband charging the accused with an offence under Section 417. The accused made an application to the trial Court that they were acquitted under Section 345 in the complaint of Kouti, the wife of the present complainant, and that the acquittal bars the present trial. The learned Magistrate disallowed the application on the ground that in the previous complaint, the complainant was advised that as she herself had not been deceived, her complaint was presented under a misunderstanding, and that it appeared from the petition that in reality it was not the complainant Kouti on whom the accused practised deception, but it was her husband on whom it was practised. The accused have applied to this Court and prayed that the order of the Magistrate should be set aside.
2. The question, therefore, in this case is whether there was a valid composition under Section 345 in the matter of the complaint of Kouti, the wife of the present complainant. It is not competent in every case for the complainant to compound the offence under Section 345. Any person may set the criminal law in motion, but it is only the person specified in Section 345, who can compound the offence. In Section 345, Clause (2), it is the person cheated who can compound an offence under Section 417, Indian Penal Code, with the permission of the Court. It was held in Emperor v. Sultan Singh 4 I C 24 : 31 A.606 : 6 A.L.J. 882 : 10 Cr. L.J.473 that where hurt was caused to three persons, one of whom died subsequently, the two surviving persons could not lawfully compound the offence as regards the deceased. There is a similar decision in Emperor v. Rahmat 30 I : 37 A. 419 : 13 A.L.J. 630 : 16 Cr. L.J. 586. Though in the case of defamation of a wife, the husband can complain as being the person aggrieved, it is the wife who can, without the consent of the husband and against his wishes, lawfully compound the offence under Section 345. See Challam Naidu v. Ramasami 14 M. p. 381 : 1 M.L.J. 242 : 2 Weir 250 : 5 Ind. Dec. (N.S.) 265 and Chhotalal Lallubhai v. Nathabhai 25 B. 151 at p. 157 : 2 Bom. L.R. 665 (F.B.). It, therefore, follows that it is not necessarily the person who has filed a complaint that can compound the offence, but it is only the person mentioned in Section 345 who can lawfully compound the offence. In the present case though the previous complaint was filed by Kouti, it was her husband who was cheated. Where an accused person alleges that an offence with which he is charged has been compounded, the onus is on him to show that there is a real and valid composition with the person against whom the offence is committed: Murray v. Queen-Empress 21 C. 103 : 10 Ind. Dec. (N. s.) 701. It, therefore, follows that unless there was a real and valid composition with Devba, the husband of Kouti, the order of acquittal was not valid in law.
3. In the complaint of Kouti no evidence was led and there was no trial of the accused in regard to the offence charged. Even assuming that the application of Kouti be construed as a withdrawal of the complaint, we think that as the present offence fell under Section 417, Indian Penal Code, and was triable under Chap. XXI relating to warrant cases, there could not be a withdrawal of the complaint. It was held in Emperor v. Ranchhod Bawla 18 Ind. Cas. 413 : 37 B. 369 : 15 Bom. L.R. 61;41 Cr. L.J. 77 that it was not competent for a Court to order an acquittal on the withdrawal of a complaint in a warrant case as Section 248 applied only to summons cases.
4. In the present case, therefore, there was no lawful composition of the offence of cheating under Section 345 of the Criminal Procedure Code, and we, therefore, think that the order of acquittal on the application of Kouti would not bar the present prosecution. We would, therefore, dismiss the application.
5. On the materials before us it seems clear that there was no real composition of the case, and that Section 345, which is referred to in Kouti's application, is stated erroneously to govern the case. The facts appear to be simply that Kouti's Pleader advised her that, as the property was not hers and she was not the person cheated, the complaint was not likely to succeed. Whether he was right or wrong in giving that advice, it is not necessary to decide; but in order to apply Section 345, there must be a real composition by a person who is authorized to compound under Sub-section (2) of Section 345. Therefore, there seem to be two objections; first, there was no real composition; and, secondly, the composition was not by the husband, although he is stated to have been present in Court at the time Kouti's application was made. The case is, therefore, one to which the principles laid down in Murray v. Queen-Empress 21 C. 103 : 10 Ind. Dec. (N. s.) 701 and Emperor v. Ranchhod Bawla 18 Ind. Cas. 413 : 37 B. 369 : 15 Bom. L.R. 61;41 Cr. L.J. 77 apply. I agree with the order proposed by my learned brother.