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Sadho Kandu Vs. Mt. Jhinka Kuer and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1929All456
AppellantSadho Kandu
RespondentMt. Jhinka Kuer and anr.
Excerpt:
- - it was for the appellant in the lower courts to make out quite clearly that the complaint of an offence under section 379 was withdrawn for the improper reason and not for the proper reason. accordingly i hold that the appellant has failed to show that the lower appellate court was wrong in finding the panchayat award to be free from taint on the ground that the appellant's assent to the arbitration was induced by a consideration opposed to public policy......10 a month as maintenance, and that there was a quarrel over the matter. the plaintiff then made a criminal complaint under sections 379 and 323, i.p.c. this induced the appellant to agree to the matter being decided by a panchayat. the award recites that the criminal case had been compromised. the defendant set up in defence the plea that his assent to the reference to the panchayat in pursuance of which the award was made was obtained because the plaintiff agreed to compromise the criminal complaint, and that this was an unlawful consideration. the trial court rejected the plea on the ground that it is not unlawful to contract with a person for the compounding of a compoundable offence. the lower appellate court does not consider the plea now taken that this was not a compoundable.....
Judgment:

Ashworth, J.

1. This second appeal arises out of a suit brought by the plaintiff-respondent against the defendant-appellant for arrears of maintenance fixed by a panchayat at Rs. 8 a month. It appears that the plaintiff, who is sister-in-law of the defendant, claimed from him Rs. 10 a month as maintenance, and that there was a quarrel over the matter. The plaintiff then made a criminal complaint under Sections 379 and 323, I.P.C. This induced the appellant to agree to the matter being decided by a panchayat. The award recites that the criminal case had been compromised. The defendant set up in defence the plea that his assent to the reference to the panchayat in pursuance of which the award was made was obtained because the plaintiff agreed to compromise the criminal complaint, and that this was an unlawful consideration. The trial Court rejected the plea on the ground that it is not unlawful to contract with a person for the compounding of a compoundable offence. The lower appellate Court does not consider the plea now taken that this was not a compoundable offence. The plea does not appear to me to have been taken in the grounds of appeal to the lower appellate Court. It is true that the second ground of appeal in that Court was that the compromise was entered into on account of undue pressure and fear of conviction.

2. In the present appeal the point taken is that it is unlawful to compound a non-compoundable offence. There is no evidence that the offence was compounded. It is to be presumed that the criminal Court acted according to law, and the presumption is that the criminal case was withdrawn and not compounded. The question then is whether it is unlawful to agree to withdraw a criminal complaint of an offence which is not compoundable under the Criminal Procedure Code. A party may withdraw a complaint on more than one ground. It may withdraw it on the ground that it has been given some consideration to withdraw it or has been given some compensation for the injury caused by the offence. In either of these cases it would appear that the withdrawal is contrary to law where the offence is a non-compoundable one. But it may withdraw on another ground, namely that the party has little chance of establishing the alleged offence or cannot prove it, or indeed on the ground that the complainant repents having brought a false or exaggerated complaint. In this case it cannot possibly be said that the withdrawal is unlawful. In the present case no attempt has been made to show the reason of the plaintiff for withdrawing the complaint so far as it was a complaint under Section 379. I am asked to presume that the reason was a promise by the appellant to have the matter of maintenance settled by a panchayat. This presumption it is of course open to a Court to make, but in the circumstances of this case, I should not be prepared to make it, because I think that it is quite likely that the complaint under Section 379 was one not likely in the circumstances to succeed. It was for the appellant in the lower courts to make out quite clearly that the complaint of an offence under Section 379 was withdrawn for the improper reason and not for the proper reason. Further the point was not raised before the lower appellate Court except so far as it would come under the vague plea that there was undue influence. In second appeal a Court will not take up a point of law for the satisfactory determination of which there is no material in the pleadings and judgments of the lower Courts.

3. No doubt there is authority that it is contrary to public policy to compound a non-compoundable criminal case, but before this principle of law can be invoked it is necessary to prove that the case was compounded, that is to say settled by a quid pro quo and not that it was withdrawn merely as unsustainable. Where a complaint alleging circumstances constituting a compoundable and also other circumstances constituting a non-compoundable offence is preferred, it has to be seen what are the essential circumstances. Accordingly I hold that the appellant has failed to show that the lower appellate Court was wrong in finding the panchayat award to be free from taint on the ground that the appellant's assent to the arbitration was induced by a consideration opposed to public policy. The appeal fails and is dismissed.


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