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Kumaraswami Chetty Vs. Kuppusami Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1918)34MLJ217
AppellantKumaraswami Chetty
RespondentKuppusami Chetti and ors.
Cases ReferredThe Queen v. Burgess
Excerpt:
- - once there has been a composition of an offence compoundable under the criminal procedure code, the matter is at an end and the person injured cannot afterwards effectively resile from the agreement. 946 and on giving the question my best consideration again, i do not find any sufficient reasons for taking a different view. --we shall probably be safe in laying it down that the law will permit a compromise of all offences, though made the subject of a criminal prosecution for which offences the injured party might sue and recover damages in an action. it seems to me that this would be an untenable proposition 3. on the facts however of this case, i am not satisfied that the sub-divisional magistrate quite clearly realised whether there was a completed agreement or composition..........unless the facts had been considered by the court. the difficulty will arise however in the actual offence of compounding. it is clear from the very earliest authorities that the offence of compounding a felony could be committed before any charge has been laid. with reference to compounding theft, the language of lord coke is quoted in the queen v. burgess (1880) 16 q.b.d. 141 which language is reproduced in archbold's ' pleading and evidence in criminal cases ' in the section dealing with compounding offences. the offence known as theft-bote is committed 'where the owner not only knows of the felony, but taketh of the thief his goods again, or amends for the same to favour or maintain him, that is, not to prosecute him to the intent that he may escape.' it is reproduced in blackstone's.....
Judgment:
ORDER

Abdur Rahim, J.

1. This is an application to revise an order of acquittal passed by the Sub-Divisional Magistrate in appeal in a case in which the accused were convicted by a Second Class Magistrate of offences under Sections 147, 355 and 323 of the Indian Penal Code. The Appellate Magistrate found that the charge of rioting could not be sustained upon the evidence and thereupon acquitted the accused of that offence. That acquittal, must in my opinion, stand as no sufficient reason has been made out for interference with that part of the order of the appellate Magistrate. He has acquitted the accused of charges under Sections 323 and 355 on the ground that there had been a valid composition of those offences within the meaning of Section 345 Criminal Procedure Code before the complainant laid the charge in court. There are two questions of law which arise in connection with this matter. First of all, a doubt has been expressed by Oldfield, J., who admitted this application, with regard to a decision of mine in Kanni Rowther v. Inayathalla Sahib I.L.R. (1915) M. 946 in which it was laid down that it was not necessary for Section 345, Criminal Procedure Code to operate, that the complainant, after composition has been arrived at, should still be of the same mind and join the accused in asking the court that the case should be dismissed as there has been a valid composition. Once there has been a composition of an offence compoundable under the Criminal Procedure Code, the matter is at an end and the person injured cannot afterwards effectively resile from the agreement. If he chooses to do so, it is for the court to enquire into the allegation of the accused that the offence was compounded out of Court and if it finds that it was so compounded, to acquit, the accused under the provisions of Section 345. In holding this view, I followed a ruling of the Calcutta High Court in Murray v. The Queen Empress I.L.R. (1894) C. 103 There is also another ruling of the same court, Kusum Bewa v. Bechu Bewa 3 C.W.N. 322 which proceeds upon the same principle. Both the learned Public Prosecutor and the learned counsel who appeared for the petitioner urged no arguments against the decision in Kanni Rowther v. Inayathalla Sahib I.L.R. (1915) M. 946 and on giving the question my best consideration again, I do not find any sufficient reasons for taking a different view.

2. The next point of law that has been discussed relates to the question whether a composition which takes place before any complaint has been laid in court by the person injured is covered by the provisions of Section 345. In its first part the section says that the offences described in the table attached, may be compounded by the persons mentioned in the 3rd column of the table. Looking at the third column, we find that the persons who can compound these offences are generally speaking, the persons injured and not a person who has already laid a charge in court. When the person injured has entered into a composition that composition is complete; and para. 6 of the section lays down what the effect of such a composition is. It says that ' the composition of these offences under this section shall have the effect of an acquittal of the accused.' It is argued that the use of the words 'offence' and 'accused', shows that the composition which is contemplated is one arrived at after a complaint has been laid and there is an accused person before the court. I cannot accept this argument as at all sound. An offence is complete when the acts constituting it have been committed apart from whether any complaint or charge has been laid before the court or not. The allusion to ' the accused ' in para. 6 of Section 345 only describes his character at the time of the trial when the question of the effect of the composition is under considera. tion. As regards certain classes of offences which may be compounded, the legislature provides that they may be compounded only with the permission of the court. In those cases, the operation of the composition is necessarily suspended until the court sanctions it. But in the other cases, no such permission is needed and no reason is apparent to me or has been suggested why the legislature having permitted certain classes of offences to be compounded by the parties themselves without any reference to Court should insist that that composition should be arrived at after the person alleged to have committed the offence has been brought before the Court. In the absence of clear language showing that that was the intention of the legislature, I should not be prepared to impute to it any such intention. I think it is quite clear upon the interpretation of Section 345 that the contention on behalf of the complainant on this point cannot be supported. It is unnecessary therefore to discuss the English Law on the subject to which some reference has been made at the bar. But I may point out that so far as I have been able to go into the matter, the case of Keir v. Leeman (1844) 6 Q.B. 308 supports the view which I have indicated as the one adopted in the Criminal Procedure Code rather than otherwise. This was a judgment of Lord Denman, C.J., and he, after reviewing the cases at some length, laid down the following proposition on the subject of composition of offences:--' We shall probably be safe in laying it down that the law will permit a compromise of all offences, though made the subject of a criminal prosecution for which offences the injured party might sue and recover damages in an action. It is often the only manner in which he can obtain redress. But, if the offence is of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution for it .' The exact point we have to consider here was not before the learned Judges in that case, but the proposition seems to imply that a composition of an offence of a particular description would be not the less valid because it took place before any complaint was laid in Court. Then the exception to Section 214 of the Penal Code exempts from the provisions of Section 213 and 214 cases of compounding offences which may be lawfully compounded. If the contention submitted on behalf of the prosecution in this case were sound, the compounding of particular offences dealt with under Sections 213 and 214, I.P.C., would be no offence if the compounding took place before the charge was laid. It seems to me that this would be an untenable proposition

3. On the facts however of this case, I am not satisfied that the Sub-Divisional Magistrate quite clearly realised whether there was a completed agreement or composition within the meaning of Section 345, Criminal Procedure Code, It appears that there was an arbitration and the arbitrator decided after some parley, that accused No. 1 was to pay the complainant Rs. 300. It is argued on behalf of the complainant that he did not accept this composition and had not even agreed to the arbitration. The Sub-Divisional Magistrate does not seem to have arrived at a clear conclusion on these points. A further question arises as to whether the Bs. 300 was to be actually paid before there was any completed composition within the meaning of Section 345; or whether the complainant was satisfied with the promise of the accused to pay that amount. The amount was not actually paid before the complaint was lodged in Court, Unless it is found that the compounding was completed before the complaint was made, any incomplete agreement would not amount to an acquittal within the meaning of the law. I may say, speaking for myself, that I should ordinarily be very reluctant to interfere in a case of this nature. But there is no finding of the appellate magistrate on the subject of the charges under Sections 323 and 355 of the Penal ode, the acquittal of the accused on these charges being based merely on an alleged composition. The facts found are not enough to show that the Sub-Divisional Magistrate had in this connection quite clear before his mind's eye the elements which would be necessary for a complete and valid composition, I would therefore set aside the order acquitting the accused of the charges under Sections 323 and 355 of the Penal Code and remit the appeal to be reheard and disposed of by the Appellate Magistrate on these charges in the light of the above observations.

Napier, J.

4. I agree and wish to add only a few words. With regard to the decision in Kanni Rowther v. Inayathalla Sahib I.L.R. (1915) M. 946 which has been referred to in the admission order, I desire to say that I am in entire accord with it. It lays down that the composition referred to in Section 345, Criminal Procedure Code is not limited to acts done in Court nor to cases in which the parties continue to be of the same mind until the cases come on for further hearing before the Court. That view seems to me to be entirely warranted by the language of the section. The sole question to be ascertained is whether there was a contract, and once that has been ascertained, there is nothing on principle which would allow a party to resile from his contract and lay a charge which he had agreed for consideration not to lay. A further question has been argued whether such a composition can be made before any complaint has been made to a magistrate or any proceedings taken in Court. Considerable stress has been laid on the words ' offences' and ' accused' in the section, and the learned Public Prosecutor has pointed out that it may be difficult to say whether a composition was lawful or unlawful unless the facts had been considered by the Court. The difficulty will arise however in the actual offence of compounding. It is clear from the very earliest authorities that the offence of compounding a felony could be committed before any charge has been laid. With reference to compounding theft, the language of Lord Coke is quoted in The Queen v. Burgess (1880) 16 Q.B.D. 141 which language is reproduced in Archbold's ' Pleading and Evidence in Criminal Cases ' in the section dealing with compounding offences. The offence known as theft-bote is committed 'where the owner not only knows of the felony, but taketh of the thief his goods again, or amends for the same to favour or maintain him, that is, not to prosecute him to the intent that he may escape.' It is reproduced in Blackstone's Commentaries as follows : ''The offence of theft-bote which is' where the party robbed not only knows the felon but also takes his goods again or other amends upon agreement not to prosecute.' This is the language of the earliest authorities and there cannot be the slightest doubt that the offence of illegal compounding is one that can be committed in relation to a matter which has not been brought before the Court. Now the connection between illegal compounding and legal compounding is very close because in the Penal Code, the exception to Section 214 'says that the provisions of Sections 213 and 214 do not extend to any case in which the offence may lawfully be compounded.' Of course, lawful compounding is that which is dealt with under Section 345, Criminal Procedure Code. So the principles which apply to the offences must necessarily apply to the exception. I am therefore satisfied that a composition made to prevent a case going into a Court is just as much a composition under Section 345 as one made after the case has come into Court. As my learned brother has pointed out, it will have no effect as a plea in bar of conviction in cases covered by Clause (2) unless the court has given its sanction. But where a composition has been made out of court and at a certain stage in the proceedings, the Court gives the sanction required by Clause 2, that is a good composition.

5. On the facts of this case, it seems to me that the Sub-Divisional Magistrate has entirely misunderstood the alleged position He seems to have thought that because P.W. 2 representing P.W. 1 agreed to abide by the decision of the arbitrators and there was a decision of a certain sort, that amounted necessarily to a contract not to prosecute. Speaking for myself, I think that the evidence is perfectly clear on that point : but I do not wish to decide this case on a question of evidence because We are sitting in revision of an order of acquittal. What the Sub-Divisional Magistrate should have done was to examine the evidence and see whether the Punchayatdars decided that the complainant was to accept the promise of the accused to pay or whether the decision of the Punchayatdars was that if the accused did pay, no complaint should be laid. I agree with my learned brother that this is a matter to which the Sub-Divisional Magistrate must direct his attention. I agree with the order proposed.


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