H.R. Krishna, J.
1. These two applications in revision have been filed by the plaintiff from the judgment of the Small Cause Court dismissing his suits based on two pro-notes. Though the plaintiff did not mention in the plaint the circumstances in which the pro-notes had been executed, they were brought out in evidence. The plaintiff, who is a jailor, reported to the police that two young boys -- sons respectively of the defendants in the Small Cause Suits -- had jointly stolen a watch belonging to him, and worth about Rs. 150/-. A case was started as usual and when it was pending investigation the fathers of the two boys executed pro-notes for amounts totalling the estimated price of the watch. The cases were dropped.
2. In the suits, the defence was that there was no consideration, the pronotes were executed under pressure or coercion, and at all events they were executed as part of the agreement to state prosecution and therefore void on grounds of public policy. The plaintiff contended that there was no evidence of threat or pressure and the fathers of the two boys voluntarily executed the notes being convinced that they had committed theft and that the owner of the watch i.e., the plaintiff was entitled to their value from the boys or their parents. It was also pointed out on his behalf that the offence under Section 379, is after the amendment of the Criminal Procedure Code in 1956, compoundable with the Court's permission where the value of the property, as in the instant case, is less than Rs. 250/-. The Small Cause Court, however, held that the consideration, if any, was void and accordingly dismissed the suits.
3. A problem like this arises in three types of suits which, while materially differing in other respects, have the common feature, that there is an attempt successful or otherwise, of stifling prosecution, and one of the parties either claims or has already received money or other valuable consideration, and the other party, as the case may be, resists the claim or seeks recovery or restitution of what it has given the prosecutor. The latter might have already recovered the value of his property, or entered into an agreement for payment to him by the accused or somebody interested in him, or thirdly, is, as in the present case, suing on the basis of a promissory note taken in accordance with the agreement. In all of them, the crucial question is whether the transaction is void under Section 23, Contract Act on the ground of illegality or opposition to public policy.
4. If the circumstances themselves speak, it is unnecessary for the party concerned to proveby direct evidence that there was coercion in the sense that word is used in Section 72, Contract Act. But there should be something on the record clearly pointing to the actual or imminent starting of a criminal case and, after the agreement, a forbearance from starting it or withdrawal or dropping of the prosecution already started. In the Civil Suit it is unnecessary to prove that the police took any active part or were even aware of the arrangement between the parties. Nor is it necessary to show that the complainant is liable to be charged under Section 213 I. P. C., though in practice the stifling of the prosecution for a non-compoundable charge would be an offence under that section. The basic principle is, in the words, of the Calcutta High Court in Sudhindra Kumar v. Ganesh Chandra, AIR 1938 Cal 840.
'It is against public policy to make a tradeof felony or attempt to secure benefit bystifling a prosecution or compounding an offencewhich is not compoundable in law.'
By compoundable is meant compoundable withoutinterference of the Court at the free choice of theparties.
'No Court of law can countenance or give effect to an agreement which attempts to take the administration of law out of the hands of the Judges and put it in the hands of private individuals.'
Again, in the Nagpur case reported in Mohanlal v. Kashiram, AIR 1950 Nag 71, it was pointed out that an agreement, if in writing or for that matter the pronote such as was given in this case, need not and most often would not make a reference to the circumstances; but they should be gathered from the survey of the evidence and the circumstances -
'Any agreement arrived at between the parties for compounding a non-compoundable offence or for withdrawal or abandonment of the prosecution for such an offence is a contract opposed to public policy and void under Section 23, Contract Act.'
5. The policy is based on the principle, that a criminal prosecution which cannot be compounded at the free will and choice of the parties, is not a private dispute between them, but is one in which society at large is interested; and any private agreement by the person ostensibly aggrieved, in return for a reward, to forbear from or to withdraw or abandon the prosecution, knocks at the root of criminal justice. Further, if such agreements are enforced by the Courts, the doors will be opened to black-mail on a large scale. A man, who loses or believes that he has lost something, may frighten another by starting or threatening to start a case for theft against him or somebody in whom he is interested; then the latter will often come round, and in his anxiety to save himself from the harassment of a trial and the possible conviction at the end make an offer or execute a pro-note, or actually pay money.
6. When, as happens in England, the case is in essence of a civil nature, though in form a criminal one, or what is more common in our country, when it is compoundable at the free choice of the parties, the position is different, as a law itself allows the parties to come to terms; there, any agreement to forbear or withdraw the prosecution is ipso facto not void on the grounds of public policy. Certainly even such an agreement can be challenged on direct evidence of coercion or fraud; but that is a different matter.
7. It is urged on behalf of the plaintiff that theft of property valued at less than Rs. 250/- is compoundable, and the present case is similar to the one reported in Jangaliya v. Gaya, 1960 MPLJ 1374. I do not agree. That case was one under Section 497 I. P. C., which is compoundable at the choice of the parties. Here the offence is compoundable only with the permission of the Court before which the prosecution is pending. Till such permission is granted, the offence remains non-compoundable; whatever has been said about non-compoundable cases properly so-called, applies to these cases also, till the permission is sought and granted.
8. The two applications are therefore dismissed summarily.