K.N. Srivastava, J.
1. This is an appeal against the judgment and order passed by Sri M. P. Gautam, Magistrate 1st Class, Roorkee, district Sahranpur, acquitting the respondents of an offence under Section 323, I. P. C., and Section 147, I. P. C.
2. The facts, giving rise to this appeal, are as follows. Faiyaz, who is a resident of Sikandarpur, thana Fatehpur, district Sahranpur, lodged a report on 30-1-1965 at thana Fatehpur. The allegations in the report were that a nephew of Faiyaz was taking his bullocks to the field for ploughing. The bullocks damaged the crop of Aziz. The nephew of Faiyaz immediately drove out the bullocks, but he was slapped by Aziz and Idris. Faiyaz asked them not to slap his nephew. Thereupon all the respondents assaulted him with lathis. Faiyaz received a number of injuries. His injuries were medically examined. The Police registered a case against the respondents under Section 147, I. P. C. and Section 323, I. P. C. After completing the investigation, the police challaned the respondents. The parties filed a compromise for compounding the offence under Section 323, I. P, C. This compromise was verified and the trial Court passed the following order:--
'The injured complainant Faiyaz has compounded the offence under Section 323, I. P. C. against the accused. The accused are thus acquitted under Section 323, I. P. C.
The charge-sheet under Section 147, I. P. C. has also been submitted. The learned counsel for the accused has relied upon the ruling cited in 1964-2 Cri LJ 111 (Pat). The charge under Section 147, I. P. C. also jolts when the offence has been compromised by the injured.' Against this order, the State has come up in appeal to this Court.
3. It was argued by the learned Assistant Government Advocate that the offence under Section 147, I. P. C. was not compoundable and the trial Court was wrong in acquitting the respondents of the offence under Section 147, I. P. C.
4. In Ramphal Gope v. State of Bihar, 1064-2 Cri LJ 111 (Pat), cited by the trial Court, Syed Naqui Imam, J., has held as below:--
'Mr. Baidya Nath Prasad appearing for the petitioners has pointed out to me that before the trial Court there was a compromise petition filed, and the trial Court accepted the compromise so far as the offence under Section 323, Indian Penal Code was concerned. Now that the appellate Court has found these petitioners guilty under Sections 323 and 323/34, Indian Penal Code, in my opinion, the compromise petition can be put into effect even at this stage. There now remains the charge under Section 147, Indian Penal Code which is not compoundable. But it appears that the common object of theunlawful assembly was to assault. If the charges under Sections 323 and 323/34, Indian Penal Code fail on account of the compromise, it is obvious that the charge under Section 147, Indian Penal Code must also fail because the common object was to assault.'
This question was the subject matter of decision in a number of cases. It appears that all the case law on the question was not placed before the Court in Ramphal Cope's case, 1964-2 Cri LJ 111 (Pat).
5. In The Crown v. Muhammad Hussain, 51 Cri LJ 1016 - (AIR 1950 Lah 121) Muhammad Jan and Kayani, JJ. reviewed the entire law on the subject, and held that if the offence under Section 324, I. P. C. was compounded by the permission of the Court, then the charge under Section 148, I. P. C. should not fail on that account and should be tried.
6. The earliest case on this subject is Venkanna v. Crown, AIR 1923 Mad 592. In this case, the accused were convicted under Sections 143 and 447, I. P. C. The offence under Section 447, I. P. C. was compounded. It was argued that the common object of the accused was to commit an offence of trespass and. as the offence of trespass was compounded, therefore, the offence under Section 143, I. P. C., ipso facto, failed. This argument was not accepted; and Wallace, J. observed as below:--
'I am not prepared to support this contention. The essence of the offence under Section 143, Indian Penal Code, is the combination of several persons united in the purpose of committing a criminal offence and that purpose constitutes in itself an offence distinct from the Criminal offence which these persons agree and intend to commit. The compounding o one offence does not mean that the offence has not been committed, but that it has been committed, though the victim is willing either to forgive it or to accept some form of solatium is sufficient compensation for what he has suffered.'
7. Another case is Emperor v. Jarnali, AIR 1925 Lah 464. In this case, the accused were charged under Section 325, I. P. C. and Section 147, I. P. C. The offence under Section 325, I. P. C. was compounded with the permission of the Court It was argued that after the acquittal of the accused of the offence under Section 325, I. P, C., the offence under Section 147, I. P. C. ipso facto, fell down. Campbell, J. observed as below:--
'If he had referred to Section 403 (2), Criminal P. C. and had read with it Section 235 (1) and illustration (g) to that Sub-section he would have perceived that an acquittal under Section 345, Criminal P. C., of an offence under Section 325, Indian Penal Code, constitutes no bar to the subsequent trial of the accused on a charge under Section 147, Indian Penal Code.'
8. In Gurunarayan Das v. Emperor, AIR 1948 Pat 58 the accused were charged under Sections 325, 147 and 148, I. P. C. This was a Division Bench case. Meredith, J. observed as below:--
'The convictions are not only for grievous hurt and hurt, but also under the rioting Sections 147 & 148. The offences under these Sections are not compoundable at all, and, therefore, no acquittal could be allowed by reason of the compromise in regard to the convictions under these sections.'
Bennett, J. agreed with the judgment of Meredith J.
9. In Agha Nazarali Sultan Muhammad v. Emperor, AIR 1941 Sind 186 which is a Division Bench case, the aforesaid Madras case was followed, and it was held that if the other offence was compounded it did not mean that the offence under Section 143, I. P, C. also fell down. In this connection, the following observations can be read with advantage:---
'On the point that an offence under Section 143, Penal Code, is a distinct and separate offence in itself distinct and separate from an offence which it is the common object of the unlawful assembly to commit, and that although this latter offence may by itself be compounded, the offence under Section 143, Penal Code, is not compoundable as a matter of public Policy, being an offence in the fullest sense of the term against the public peace, there is the authority of the Madras High Court, ILR 4G Mad 257 : (AIR 1923 Mad 592).'
10. Unlawful assembly has been defined in Section 141, I. P. C, The first, second, fourth and fifth Clauses of this section would not apply to the facts of the present case. The third Clause, which would be applicable, reads as below:--
'To commit any mischief of criminaltrespass or other offences; or'
It was argued that if an unlawful assembly was formed with an object to commit a crime and if it was found that the accused were not guilty of any offence, then the accused should not be held to have formed the unlawful assembly.
11. Section 146, I. P. C. defines rioting and Section 147, I. P. C., lays down the punishment for rioting by an unlawful assembly. The respondents formed an unlawful assembly and, in prosecution of the common object of the assembly, they committed violence and assaulted the complainant. The offence under Section 147, I. P. C. is certainly separate from the offence under Section 323, I. P. C.
12. The compromise would result in the acquittal of the respondents of the offence under Section 323, I. P. C. This would not go to show that they did notcommit any violence as members of the unlawful assembly. In compromise case, the acquittal is recorded simply because the parties come to terms. It does not mean that no offence was committed at all. On the other hand, admitting that the offence had been committed, the parties patch up their differences and enter into compromise, so that they may live peacefully in future. It is for this end that composition of certain kind of offence is permitted.
13. It should be noticed here that certain offences, which are of aggravatednature, are excluded from the operationof Section 345, Criminal P. C., under whichthe offences are compounded. The offenceunder Section 147, I, P. C., is against thepublic tranquillity and is of an aggravatednature. It has, therefore, been taken outfrom the orbit of Section 345, Cr. P. C.
14. In my opinion, the acquittal of the respondents of the offence under Section 323, I. P. C., on the basis of the compromise would not go to show that the offence under Section 323, I. P. C., was not at all committed. It will, therefore, be not correct to say that the respondents did not commit violence in prosecution of the common object of the unlawful assembly. I have already observed in the earlier part of this judgment that in Ram-Phal Cope's case, 1964-2 Cri LJ 111 (Pat) the earlier decisions were not taken into consideration, and the Judgment in that case was based on the finding that if the charges under Sections 323 and 323/34, Indian Penal Code, failed on account of the compromise, the charge under Section 147, Indian Penal Code, also failed because the common object was to assault. With due deference, I do not subscribe to this view.
15. After taking into consideration the rulings of different High Courts on this question, I am of the opinion that the composition of th.e offence under Section 323, I. P. C., did not amount to acquittal of the respondents of the offence under Section 147, I. P. C. The learned trial Court has, therefore, wrongly acquitted the respondents of the offence under Section 147, I. P. C.
The appeal is allowed. The order of the trial Court acquitting the respondents of the charge under Section 147, I. P. C., is set aside. Let the record of the case be sent down to the trial Court for trying the respondents for the offence under Section 147, I. P. C, in accordance with law.