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Suravi Mukherjee Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Rev. No. 879 of 1964
Judge
Reported inAIR1965Cal469,1965CriLJ353,69CWN299
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 345(1); ;Indian Penal Code (IPC) - Sections 323, 354 and 379
AppellantSuravi Mukherjee
RespondentState and anr.
Appellant AdvocateS.S. Sanyal and ;Mukti Maitra, Advs.
Respondent AdvocateD.P. Choudhury, Adv.
Cases ReferredKusum Bewa v. Beechu Bewa
Excerpt:
- .....failure to attend court in connection with a case under sections 354, 379 and 323 of the indian penal code and the petition of the complainant under 323 alleged to have been committed by her was rejected. it appears that a revisional application filed before the learned sessions judge against the said order was rejected by sri l.c. sen,additional sessions judge of murshidabad on 30-5-64.2. the case is a very simple one, but a point of law is involved in this case, on which no decision of this court has been shown by the learned advocates appearing for both the parties. briefly the complainant pratima banerji's case is that she brought a case against her brother-in-law pronab kumar banerjee, the present petitioner sm. suravi mukherjee and one habul chandra das to answer charges under.....
Judgment:
ORDER

K.C. Sen, J.

1. This Rule is directed against the order of Sri. B.K. Roy Choudhury, Magistrate, First Glass, Jangipur, dated 22nd April, 1964, whereby a warrant of arrest was issued against the petitioner Suravi Mukherji for her failure to attend court in connection with a case under Sections 354, 379 and 323 of the Indian Penal Code and the petition of the complainant under 323 alleged to have been committed by her was rejected. It appears that a revisional application filed before the learned Sessions Judge against the said order was rejected by Sri L.C. Sen,Additional Sessions Judge of Murshidabad on 30-5-64.

2. The case is a very simple one, but a point of law is involved in this case, on which no decision of this Court has been shown by the learned Advocates appearing for both the parties. Briefly the complainant Pratima Banerji's case is that she brought a case against her brother-in-law Pronab Kumar Banerjee, the present petitioner Sm. Suravi Mukherjee and one Habul Chandra Das to answer charges under Sections 354, 379 and 323, Indian Penal Code. It may be mentioned here that against the petitioner Sm. Suravi Mukharjee only a case under Section 323, Indian Penal Code was made out. On the 15th April, 1964 Protima Banerjee stated before the learned Magistrate by a Petition duly signed by her and her pleader that the case was compromised and all the accused persons were to be released. This was put up for consideration before (sic) the next hearing date, namely, the 22nd April, 1964 which was fix ed for hearing of the case. The Magistrate rejected the composition petition on the ground that offences under Sections 379 and 354, Indian Penal Code were not compoundable. In so far as the case under Section 323 of the Code against the petitioner Sm. Suravi Mukharjee was concerned, the learned Magistrate took the view that she being absent on that day, warrant of arrest should be issued against her as the complainant stated before him that the terms of compromise had not yet materialised. It will appear from the order of the learned Magistrate that a submission was made to him on behalf of the accused Sm. Suravi Mukharjee that she was under the impression that the matter had been compromised and, therefore, she thought fit not to appear before the court on the date fixed. Such a submission by the petitioner was, however, negatived.

3. As regards the offences against Pronob Banerjee and Habal Chandra Das, I am of opinion that the petition of compromise will not be operative as they were charged with non-compound-able offences. So the case against Pronob Banerjee and Habal Chandra Das will respectively be proceeded with under Sections 354 and 379, Indian Penal Code.

4. It will appear from the complainant's petition that she expressed in clear terms that as the case against the present petitioner Suravi Mukherjee had been compounded, it should not proceed against her This petition was dated 15th April. 1964 and was duly signed by the complainant Protima Banerjee. It will appear that she has condescended to withdraw the case in respect of all the accused persons but we are here concerned with the case against the present petitioner and it is for decision whether the case has' been compounded, in accordance with law.

5. The learned Additional Sessions Judge rejected the criminal Motion preferred by the petitioner and found that the decision reported in 51 Cr. LJ 751 : (AIR 1950 Nag. 91) Godfrey Meeus v. Simon Dular, referred to by her before him, was distinguishable from the instant case The Nagpur High Court decided that where a compromise petition in respect of offences under Sections 323 and 506 of the Penal Code duly signed by both the parties and containing a statement that the complainant has compromisedthe case of his own free will, is presented to court by the accused, it will amount to a valid compromise, within the meaning of Section 346, Criminal Procedure Code. In this reported decision both the accused and the complainant signed the composition petition and, as such, he was of opinion that the petition filed by Pratima Banerjee unilaterally and without being signed by the accused Suravi Mukherjee does not constitute a valid agreement towards composition of the offence under Section 323 of the Indian Penal Code, within the meaning of Section 346 Cr.P. Code. Furthermore, he has held that in so far as the complainant on a subsequent date, stated that the compromise had not fully matured, the matter required an enquiry by the learned Magistrate.

6. Before me Mr. Sanyal, the learned Advocate appearing for the petitioner, has urged that the petition filed by Protima Banerjee, the complainant, before the learned Magistrate on 15th April, 1964 is a valid petition under Section 345(1) Cr. P.C. and that it does not require to be signed by the accused. In the schedule it has been mentioned that an offence under Section 323 I.P.C. is compoundable by the person to whom the hurt is caused and, as such, this provision itself is clear enough to show that signature of the accused person on a composition petition is unnecessary in a case like this. The second point as urged by Mr. Sanyal is that as soon as such a petition is filed, it amounts to an acquittal of the petitioner and it cannot in any event be reopened by the learned Magistrate in spite of the fact that the complainant on the next hearing date made a verbal submission that the terms of compromise had not matured.

7. The complainant although duly served with notice in this Rule, has not appeared.

8. Mr. Choudhury, the learned Advocate appearing for the State, has opposed the Rule and has contended that the terms of Section 345(6) Cr. P. C. really require that the composition shall have the effect of an acquittal of the accused with whom the offence has been compounded. The expression 'with whom the offence has been compounded', according to Mr. Choudhury, pre-supposes it valid agreement and unless such an agreement contains the elements of offer and acceptance, it cannot be acted upon by the Courts under Section 345 Cr. P.C. In the instant case such an element is absent and therefore the learned Magistrate was right in holding that on the face of the complainant's assertion that the composition had not materialised, it could not be said to be operative. At the next place it has been submitted that there being an objection by the complainant to this effect, the Magistrate was called upon to enquire into the matter.

9. I shall on the basis of the arguments submitted by the learned Advocates proceed to decide whether the unilateral petition submitted by the complainant is operative towards composition of a compoundable offence to wit, an offence under Section 323 of the Indian Penal Code.

10. In the first place, reference to the relevant observations of the Privy Council in a case reported in Bhowanipur Banking Corporation Ltd. v. Sreemati Durgesh Nandini Dassi, need be made as sufficient light as tounilateral petitions like this will be obtained. In this case a question arose whether a criminal offence under Section 430 Indian Penal Code was deemed to have been compounded on a petition filed by the complainant and whether the mortgage bond in question was executed as a part of the consideration for a promise by the bank to withdraw criminal proceedings against one Kalidas, the mortgagor's husband. This part of the defence was negatived by the trial Judge but was accepted by this Court in First Appeal and affirmed by the Privy Council in this decision. Their Lordships observed in this case that like many other contracts they have to be inferred from the conduct of the parties after a surrey of the whole circumstances. It will appear from this decision of Lord Atkin that there was a unilateral petition before the learned Magistrate regarding the withdrawal of the case against the accused Kalidas.

It is profitable to refer to the petition as incorporated in the judgment for the purpose of showing how it was dealt with by the learned Magistrate under Section 346 Cr. P. Code. It is quoted below:

'In the Court of the Honorary Magistrate, Alipore.Prokash Chandra Bose v. Kalidas Rai Chowdhury and others

Section 420/120B, I.P.C.

The humble petition of Prokash Chandra Bose, complainant above named,

Most respectfully sheweth:

That in the above case Babu Kalidas Roy Choudhury and his son Babu Jitendra Kumar Roy Choudhury have made up their differences with the bank and have voluntarily made arrangement for the payment of the money due from them. That the other three accused persons are undergoing trial in the Court of the Police Magistrate, Alipore, and a charge under Section 420/120B, I.P.C. has been framed against them along with other charges and there is no necessity for another trial. That your petitioner, therefore, does not desire to further proceed with the case or adduce any evidence.

Your petitioner, therefore, prays that your honour will be pleased to discharge the accused. And your petitioner, as in duty bound, shall ever pray.

Alipore 29-6-25.'

11. It will appear as I have stated before, that this petition was not signed by the accused and the learned Magistrate gave effect to such a petition and passed an order under Section 345 of the Code of Criminal Procedure. On this petition their Lordships of the Privy Council have observed that:

'It is difficult to see what more cogent proof there could be of an agreement to stifle a prosecution.'

Their Lordships further observed that 'When the bank' namely, the appellant before their Lordships.

'state before the Magistrate that there is talk of compromise, take adjournments obviously to arrange the compromise, make a compromise which includes taking the mortgage in question, and then ask to withdraw the case because of the compromise, there seems. little doubt that thelady and her son were in this respect telling the truth'

I have just quoted the relevant portion of the judgment in this case with the obvious purpose of showing that in composition petitions like this it is not incumbent upon the Magistrate to require the accused persons to be parties to such petitions in view of the express provisions in Section 345(1) and they may act upon unilateral petitions submitted by complainants, although the propriety or otherwise of such petitions may be questioned in subsequent appropriate civil proceedings, as appearing, from the facts stated in the Privy Council decision.

Accordingly, I am of opinion that the accused persons need not be called upon rigidly to be parties to such petitions by appending their signatures as a condition precedent to give effect to composition as under the terms of Section 345(1) the initiative should come from the complainant, although it is desirable, by way of abundant caution, to insists upon a bilateral agreement.

12. The next question for consideration is whether the Magistrate is called upon to enquire into the truth or otherwise of a composition petition when a complainant submits before the Court verbally at a subsequent date that the compromise did not fully materialise. The difficulty in embarking upon such an enquiry on a subsequent date is that as soon as an offence is compounded by a complainant i.e. a person to whom hurt, under Section 323 I.P.C. is caused, it operates as an acquittal even if no acquittal order is recorded. In this connection Mr. Sanyal has referred to me a decision reported in 16 Cr. L.J. 81: (AIR 1914 Lah 561 12) ) Hasta v. Emperor. The Punjab Chief Court decided that when a Court has drawn up a charge of an offence compoundable without sanction of court and the charge having been read and explained to the accused, has been pleaded to, that court should, upon the presentation to it of a petition of composition by the person mentioned in the last column in the table in Section 345, Cr. P. C. at once accept the petition and acquit the accused and has no power to alter the charge already drawn up. Although the decision is not apposite for deciding the instant application, yet it has been cited lo show that the acquittal of the accused takes effect from the date when the petition of composition is tiled before the learned Magistrate and that a composition petition may be filed by the complainant alone.

13. In the instant case the petition under Section 345(1) of Cr.P. Code was tiled on 15-4-64 and therefore acquittal of Suravi was operative from this date. It could not be shown to me by Mr. Choudhury that there is any provision in the Cr.P. Code whereby an enquiry may be embarked upon for setting aside the acquittal earned by the accused in terms of Section 345 or that it provides for satisfaction of the Magistrate as to the correctness of the petition, before any offence is compounded. Sub-section (1) of Section 345 with which we are concerned in this case, simply provides that

'The offences punishable under sections of the Indian Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of the table:'

This part of the Section is unlike the provisions of Order 23 Rule 3 of the Civil Procedure Code which requires the Court to record a compromise after it is proved to its satisfaction that a suit has been adjusted wholly or in part by any lawful agreement or compromise.

Accordingly, it need be considered whether the finding of the learned Additional Sessions Judge to the effect that the court should require proof of compromise and be satisfied that it is legal and valid in law in respect of the instant case is correct or not. From the order of the learned Magistrate if appears clear that the compromise petition duly signed by the complainant and her pleader, was filed in Court on 15-4-64 and it was put up for order on 22-4-64; when it was given a go-by, as the complainant gave the court lo understand that the composition had not fully materialised. The complainant on the next dale of hearing did not urge that the petition tiled by her was in any way invalid in law. Although Section 345(1) does not provide for 'satisfaction' of the Magistrate as to its validity yet under the ordinary rule of prudence it is necessary that he should be satisfied as to its legal validity and whether it conforms with the terms of this section immediately it is filed. The petition as it stands and the subsequent statement of the complainant do not warrant the inference that the compounding of the offence under Section 323 I.P.C. was invalid in law. On this premises it may be said that composition was effective from 15-4-64, when no exception thereto was taken and reopening the case on 22-4-64 against the petitioner was uncalled for.

In this connection reference may be made to a very old Bench decision of this Court reported in 3 Cal W.N. 322, Kusum Bewa v. Beechu Bewa, where their Lordships found inter alia on the facts of the case that the learned Magistrate was wrong in ordering the petition to he put up with record but should have immediately dealt with the matter and that he was under the terms of Section 345 Cr.P. Code, obliged to accept the compromise and to give effect to it and that the complainant could not by a subsequent withdrawal of the petition of compromise insist upon the case proceeding. This shows that unless the compromise militates against the provision of Section 345(1) Cr.P. Code as to its validity thereunder, or is invalid in law on the face of it, becomes effective from the date when it is filed and the accused is acquitted and the court becomes functus officio. Accordingly, in this case, under consideration, the principle of 'terfois acquit' is attracted in favour of the 'petitioner from 15-4-64 and under no circumstances it is justifiable that the case should be proceeded with only because the complainant verbally gave out that the compromise had not materialised.

14. Before parting with the case I would like lo say that in the aforesaid Privy Council decision reported in their Lordships of the Privy Council were pleased to observe that in all criminal cases reparation where possible is the duty of the offender and is to be encouraged. Undoubtedly reparation in the instant case came from the offender as otherwise the complainant who was really aggrieved could not have, in clearterms as to composition, filed this petition on 15-4-64. When a petition was filed, it was not the court's function to enquire on a subsequent date into the truth or otherwise of the reparation by the offender as pointed out by the learned Judge, apart from its satisfaction as to its validity u/s 345(1) as composition was fait accompli, although in an appropriate civil proceeding it may be necessary to ascertain that each party should understand that the one is making his promise in exchange or part exchange for the promise of the other not to prosecute or continue prosecuting,

15. Regard being had to the legal position as stated before I am of opinion that the learned Magistrate's order issuing warrant of arrest against the petitioner cannot be allowed to stand and I also direct that by virtue of the composition petition filed on 15th April 1964 under Section 345 C.r. P. Code the petitioner Suravi Mukherji is acquitted of the charge under Section 323 of the Indian Penal Code with effect from this date and that the reopening of the case by the learned Magistrate on 22-4-64 is unwarranted by law.

16. In the circumstances, the Rule is made absolute and the order of the learned Magistrate dated 22nd April, 1964 in so far as it concerns the accused petitioner Sm. Suravi Mukherjee is set aside. The case shall proceed in accordance with law against the other licensed persons under Sections 354 and 379, or any other section of the Indian Penal Code, as directed by the learned Magistrate.


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