1. One Behary Lal Sardar complained on 30-5-1945, against Hiralal Mandal, Haralal Mandal and Bam Lai Mandal and others before the Sub-Divisional Magistrate of Khulna alleging that the accused had been guilty of rioting and had assaulted him and his mother. The Magistrate issued a warrant against Hiralal, Haralal and Bam Lai under S3. 323 and 147, Penal Code. After two dates a compromise petition was filed on 1-8-1945, and the Magistrate recorded an order 'compromise petition is filed by both parties. Accused acquitted under Section 345, Criminal P.C.' On 8th August the mother Moyna Dasi appeared before the same Magistrate and filed a complaint mentioning the facts. The Magistrate directed that the connected papers be put up and finally on 20th September (the opposite party in some way having been heard on 17th September) the Magistrate noted that in the earlier case the compromise was effected between Behary Lal Sardar and the 3 accused,, Moyna Dassi being a witness, and that on giving careful consideration he did not see any justification for Moyna Dasi to be debarred from proceeding against these accused in her case as the compromise was not effected with Moyna Dasi but with other persons. He accordingly summoned the 3 accused Hira Lai Mandal, Hara Lai Mandal and Bam Lal Mandal under Section 323, Penal Code. The case went to another Magistrate for hearing who decided that further proceedings were barred under Section 403, Criminal P.C. and discharged the accused. The learned Magistrate who discharged the accused did not decide as a fact whether Moyna Dasi had compromised the previous case or not. He notes:
Defence takes shelter under Section 403, saying that rightly or wrongly the accused persons were acquitted by a competent Court after trial and so no further prosecution can be on the same facts.
2. We have already noted above the order that was passed in the earlier case. The Magistrate merely noted that the case had been compromised by the parties and that the accused were acquitted. The acquittal was clearly one under Section 345(6), Criminal P.C. It did not purport to acquit any accused of any offence whom the Court had no jurisdiction to acquit. Under that section composition could only have the effect of an acquittal of the accused with whom the offence had been compounded. Reference to the table in Sub-section (1) of the section shows that the offence of causing hurt under Section 323, Penal Code, can only be compounded with the person to whom the hurt is caused; in other words, there can only be a composition for an offence of causing hurt to the persons who actually were parties to the compromise. If Moyna Dasi was not a party to the compromise, then there was no composition with her and there can be no acquittal of the accused in that case in respect of the hurt caused to her. There is nothing in the order to show that the Magistrate wrongly intended or in fact did pass any order of acquittal of the accused for an offence of causing hurt to anybody who had not compounded the case. As to the question of discretion, when Moyna Dasi moved her complaint, as to whether further proceedings should be allowed to be taken, this was fully considered by the proper person, the Sub-divisional Magistrate and he issued summons in the case. Before the trial Magistrate there are only 2 questions, (1) whether the accused voluntarily caused hurt to Moyna Dasi and (2) (if the accused choose to raise the question) whether Moyna Dasi had in fact been a party to the compromise on 1st August so that as a result the accused were acquitted by the order of the Magistrate on that date. If she was not a party to the compromise they were not acquitted by that order. The rule is accordingly made absolute. The order of discharge is set aside and the case is remanded to the trial Court for disposal in the light of the above comments.