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S.K. Kakkar and anr. Vs. Yaswant Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision Petition No. 409 of 1984
Judge
Reported in1985(1)WLN601
AppellantS.K. Kakkar and anr.
RespondentYaswant Singh and anr.
DispositionPetition allowed
Cases Referred and Bandhu Padma and Anr. v. Bandhu Senapati and Anr.
Excerpt:
.....is no provision for the verification of the compromise as such. all that is required is that the learned magistrate must be satisfied that a compromise had been arrived at, which fact was not disputed in this case.;revision allowed - - it was, however, contended that the complainant failed to deposit the arrears as agreed and, therefore, the booth could not be restored. clearly lays down that the composition of any offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. all that was required is that the magistrate must have been satisfied that a compromise has been arrived at. all that is required is that the learned magistrate must be satisfied that a compromise had been arrived at, which fact was not disputed in..........be acquitted. 4-4-1984 was not the date fixed in the proceedings of this case and, therefore, the learned magistrate recorded an order on the back of this application to the effect that the parties with their counsel had filed this application, the matter may be put up on the date of hearing along with case file. the next date was 18-8-1984. on that day when the case came up before the court, the presiding officer had already proceeded on transfer and his successor had not taken over. the case was, therefore, adjourned to 5-9-1984. on 5-9-1984 an application was filed on behalf of the complainant that the compromise had been entered into between the parties on account of the allurement given by the accused persons to the complainant that his milk booth which had been discontinued shall.....
Judgment:

K.S. Lodha, J.

1. The two accused petitioners have filed this revision against the order of the learned Judicial Magistrate No. 1, Jodhpur dated 17-9-84. The revision arises under the following circumstances:

2. On a complaint filed by non-petitioner Yashwant Singh against the present petitioners, the court took cognizance of an offence Under Section 448 I.P.C. against them. When the matter was pending for framing charges, an application was moved signed by both the parties and their learned Counsel on 4-4-84 that the matter has been compromised between the parties and the complainant did not want to further prosecute the case. It was further prayed that the accused may be acquitted. 4-4-1984 was not the date fixed in the proceedings of this case and, therefore, the learned Magistrate recorded an order on the back of this application to the effect that the parties with their counsel had filed this application, the matter may be put up on the date of hearing along with case file. The next date was 18-8-1984. On that day when the case came up before the court, the presiding Officer had already proceeded on transfer and his successor had not taken over. The case was, therefore, adjourned to 5-9-1984. On 5-9-1984 an application was filed on behalf of the complainant that the compromise had been entered into between the parties on account of the allurement given by the accused persons to the complainant that his milk booth which had been discontinued shall be restored and that a letter for such a restoration had been shown to him. However, that booth had not been restored and, therefore, the complainant was not now willing to get the compromise recorded. The accused-persons filed a reply to this application. It was not denied that there was an assurance about the restoration of the milk booth but it was on the condition that the complainant was to deposit the arrears within 15 days whereupon his licence for the milk booth would be restored. It was, however, contended that the complainant failed to deposit the arrears as agreed and, therefore, the booth could not be restored. It was; however, contended that the complainant cannot go back on the compromise already arrived at on 4-4-1984. The reply also referred to a suit filed by the complainant for restoration of the milk booth and its dismissal. Reference was also made to the fact that the Dairy Corporation has also filed a suit for recovery of the arrears against the complainant which was pending.

3. The matter came up before the learned Magistrate on 17-9-1984. After hearing the parties in respect of the application dated 5-9-1984, the court found that since the complainant was disputing the compromise, so the compromise cannot be acted upon and, therefore, the prosecution should be continued. He refused to verify the compromise. It is against this order that the present revision has been filed.

4. I have heard the learned Counsel for the parties.

5. It is contended by the learned Counsel for the petitioners that in case a compromise had been arrived at between the parties in respect of the offence Under Section 448 I.P.C. which was compoundable without the permission of the court, the accused must deemed to have been acquitted Under Section 320(8) Cr. P.C. and the learned Magistrate was not justified in refusing to verify the compromise and proceed further with the case.

6. On the other hand, the learned Counsel for non-petitioner No. 1 contended that as the compromise had been arrived at on account of allurement, it was not with the free consent of the complainant and, therefore, it was no compromise at all and the learned Magistrate was, therefore, justified in refusing to verify the same. He further submitted that the learned Magistrate was further justified in making an enquiry on the application dated 5-9-1984 to find out whether the compromise had been legally arrived at. In this connection he placed reliance upon Mangilal and Anr. v. The State 1967 Cr. L.J. 158 and Bandhu Padma and Anr. v. Bandhu Senapati and Anr. 1967 AIR Orissa 5.

7. I have given my careful consideration to the rival contentions.

8. As a matter of fact, the controversy in this case lies in a very narrow compass. There is no dispute that a compromise had been arrived at and an application had been filed by both the parties on 4-4-1984 apprising the court of the fact that the compromise had been arrived at between the parties and the complainant did not want to prosecute the case. It was also prayed in the application that the accused may be acquitted. Section 320(8) Cr. P.C. clearly lays down that the composition of any offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. The question is whether once such an application had been filed by both the parties, the court could further make an enquiry about the correctness of the compromise. In my opinion, in the circumstances of this case this course was not open to the learned Magistrate. As already stated above, the fact of the compromise has not been disputed. All that has been alleged in the application dated 5-9-1984 is that the compromise was subject to the restoration of the milk booth to the complainants and that assurance given by the accused persons had not been fulfilled. The said assurance having not been fulfilled, the complainant expressed his desire not to get the compromise verified. Now in this application also the fact that a compromise had been arrived at between the parties has not been disputed, that being so there was no further necessity of any enquiry on the part of the learned Magistrate to ascertain whether the assurance given to the complainant had been fulfilled or not. All that was required is that the Magistrate must have been satisfied that a compromise has been arrived at. The compromise in the present case cannot be said to be illegal or void. The non-fulfillment of assurance given by the accused persons cannot detract from the fact that the compromise had been arrived at. If the complainant thinks that the condition on which the compromise had been arrived at had not been fulfilled, he may take recourse to legal proceedings for the enforcement of the obligation against the accused persons on that account. He cannot resile from the compromise already arrived at by him.

9. The authorities relied upon by the learned Counsel for non-petitioner 'No. 1 do not at all appear to be relevant in the present case. In Mangilal's case (supra), there were three offences, namely, offences Under Sections 323, 504 and 380. The first two of offences were compoundable without the permission of the court but not the last. A compromise was arrived at between the parties and the court was of the opinion that even if as the first two offences had been compounded and the accused stood acquitted of those offences by virtue of the provisions of Section 320(g) Cr. P.C. the trial for the offence Under Section 380 I.P.C. would not be hampered. In Bandu Padma's case (supra) the factum of compromise itself was in dispute in as much as the accused filed an application that the offence had been compounded. The complainant was present in the court but the learned Magistrate did not enquire from him whether the fact stated by the accused was correct or not and proceeded with the case. Thereupon, the accused filed a revision and it was observed that the learned Magistrate was bound to make an enquiry about the fact of the compromise. Such is not the case here. In these circumstances when the offence had already been compounded and an application to that effect had been moved by both the parties before the court, the court was nothing more to do except to record an order of acquittal of the accused Under Section 320(8) Cr. P.C. There is no provision for the verification of the compromise as such. All that is required is that the learned Magistrate must be satisfied that a compromise had been arrived at, which fact was not disputed in this case.

10. I, therefore, allow this revision, set aside the order of the learned Judicial Magistrate No. 1, Jodhpur dated 17-9-1984 and hold that the accused petitioner S.K. Kakkar and Anand Mathur stand acquitted of the offence Under Section 448 I.P.C.


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