G.K. Misra, J.
1. Bamdeb Senapati, opp. parly No. 1, is the complainant in a criminal case under Section 323, I. P. C. against the petitioners and opp. party No. 2. Opp. parties 1 and 2 have already entered into a compromise and opp. party 2 has been acquitted. Petitioners alleged that on 8-6-66 there was a compromise between them and opp. party 1. A compromise petition was written and signed by the parties and their advocates Mr. A.K. Rao, himself was the advocate for the petitioners and he states that he himself signed the compromise petition. It could not be filed in Court on that day as it was late and the case had been adjourned to 21-5-65 The complainant promised to file the compromise petition on 21-5-65. but failed to do so The Presiding Officer of the Court was absent on 21-5-65 and the case was adjourned to 19-6-65. On that day the petitioners filed an application to direct the complainant to file the compromise petition in Court and on its basis to pass an order of acquittal of the petitioners. On 10-7-65 the learned Magistrate rejected this application and declined to make an enquiry. It is against this order that the Criminal Revision has been filed
2. Section 323, I. P. C. is compoundable without the permission of the Court. If the facts alleged in the application of the petitioners are true, the petitioners would be entitled to an acquittal under Section 345 (6), Cr. P. C. It says that the composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded
3. There is no provision in the Criminal Procedure Code as to whether the Magistrate would make an enquiry into the allegation of composition. It is. however, a matter of commonsense that even without any specific provisions in the Code, the Court is hound to make an enquiry Without an enquiry into the truth or otherwise of the assertions of the petitioners, the Court would not be in a position to say that the averments made therein are untrue. The application was filed on 19-6-66 when the parties and their Advocates were present in Court. It was the duty of the learned Magistrate to have called upon the complainant and his advocate to file objection, if any, to the application or to accept it. The learned Magistrate exercised his jurisdiction with material irregularity in throwing out the application without any inquiry.
The procedure to be followed in such cases would be that the opp. party No. 1 must be given opportunity to file a counter. If both the parties agree that there was compromise, the case should be disposed of in terms of the compromise and the petitioners should be acquitted. If on the other hand, the parties differ, both parties should be called upon to lead evidence and the learned Magistrate should record a finding on the evidence whether the allegations regarding compromise are true or not.
It is difficult to support the order of the learned Magistrate. He has failed to exercise the jurisdiction vested in him. He is accordingly directed to make an enquiry into the factum of compromise and dispose of the case in accordance with law and the directions given above.
4. In the result, the order dated 10-7-1966 refusing to make an enquiry into the question of compromise is set aside and the revision is allowed.