R.L. Narasimham, C.J.
1. This is a petition by one Suna Satpathiani challenging the legality of an order of acquittal under Section 345 of the Criminal Procedure Code passed by a first class Magistrate of Berhampur.
2. One Mohan Sathpathy, the husband of the petitioner filed a criminal case against the three members of the opposite party (who are his wife's own brothers) alleging that on 4-11-1957 they cut away paddy crops from some lands in village Hingalapalli which beonged to his wife. He also stated that he raised the crops on the land. In due course a regular case under Section 379 I. P. C. was started against the three members of the opposite party and! the complainant, Mohan Satpathy and 3 more witnesses were examined in chief and also cross-examined before charge.
Charge was also framed under Section 379. In hisevidence he re-iterated his statement that the land belonged to his wife and that he cultivated] the same, Mohan Satpathy died on 27-6-59. On 3-10-1959, his son, Kailash Chandra Sathpathy filed a compromise petition saying that the parties have settled the dispute amicably. The learned Magistrate without carefully examining whether Kailash had the right to compound! the case allowed the compromise and acquitted the accused persons under Section 345 of the Criminal Procedure Code.
3. After the amendment made to the Criminal Procedure Code by Act XXVI of 1955 the offence of theft is also compoundable if the value of the property stolen does not exceed Rs. 250/- but Sub-section (2) of Section 345 says that the owner of the stolen property alone has the right to compound the offence of theft. Sub-section (7) of that section further says that no offence shall be compounded except as provided under that section. It is, thus clear that the offence of theft can be compounded only by the owner of the property stolen.
Even the complainant in a theft case is not given the power to compound the case unless he is also the owner. In view of a clear statement of Mohan Sathpathy that the land belonged to his wife and that he was merely cultivating the same, the owner of the crops stolen must be held to be his wife namely, the petitioner. The complainant's son had, therefore, no authority to compound the offence. The question as to who was in actual possession of the stolen property before theft is immaterial for the purpose of Section 345(2) of the Criminal Procedure Code.
4. Mr. Das, however, urged that this revision would not lie inasmuch as the petitioner had a right of appeal against the order of acquittal under Section 417 (3) of the Criminal Procedure Code. But that section, in terms confers right of appeal only on the complainant namely Mohan Satpathy who is now dead. The petitioner had no such right of appeal and she was therefore entitled to seek the revisional jurisdiction of this Court under Section 439 of the Criminal Procedure Code. The bar imposed by Sub-section (5) of Section 439 has no application.
5. I, therefore, allow this petition, set aside the order of acquittal passed by the Magistrate on 3-10-1959 and direct him to dispose of the case according to law. The sale proceeds of the stolen crops should continue to remain in deposit with the Court until the disposal of the case.