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Baburali Sardar and ors. Vs. Kala Chand Bepari and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1939Cal728
AppellantBaburali Sardar and ors.
RespondentKala Chand Bepari and ors.
Excerpt:
- .....with regard to this question it has been argued that the matter has come before this court in its revisional jurisdiction by reason of this court having sent for the record in the exercise of its powers under section 435, criminal p.c. section 435 empowers this court to call for and examine the record of any proceeding before any inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of such inferior court. in the case with which we are now dealing, it is quite clear that the orders passed by the courts below contained no illegality or irregularity with reference to the suggested compromise, inasmuch as no question with regard to any such.....
Judgment:
ORDER

Edgley, J.

1. In this case the petitioners were convicted by Mr. H.N. Bose, Deputy Magistrate of Narayanganj, on 15th August 1938 in respect of offences under Section 323, I.P.C. and were sentenced to pay fines of Rs. 30 each or in default to undergo rigorous imprisonment for six weeks. On 9th November 1938, the learned Additional Sessions Judge of Dacca was asked to refer this case to the High Court on the ground of certain alleged illegalities in the order of the trial Court, but he declined to do so. This Court was then moved in revision on 19th January 1939. The main ground urged in support of the petitioners application was to the effect that the dispute between the petitioners and the complain, ant had been compromised. A Rule was therefore issued upon the District Magistrate of Dacca and the complainant to show cause why the order of the trial Court should not be set aside on the ground that, even although there was no suggestion that the case should be compromised before the Courts below recorded their orders of 15th August and 9th November respectively, it was nevertheless competent for the High Court to allow the parties to compromise the case and to acquit the petitioners having regard to the provisions of Section 345(5A), Criminal P.C. In this connexion it may be mentioned that the allegation in the petition before this Court with regard to the compromise is to the effect that this compromise was made on 15th November 1938, that is six days after the petitioners' application in revision had been rejected by the learned Additional Sessions Judge of Dacca.

2. The first point for consideration in connexion with this case is whether or not this Court has jurisdiction under Section 345(5A), Criminal P.C, to allow the parties to compromise a dispute of this nature, although there was no proposal before either of the Courts below to the effect that any such compromise should be made. With regard to this question it has been argued that the matter has come before this Court in its revisional jurisdiction by reason of this Court having sent for the record in the exercise of its powers under Section 435, Criminal P.C. Section 435 empowers this Court to call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of such inferior Court. In the case with which we are now dealing, it is quite clear that the orders passed by the Courts below contained no illegality or irregularity with reference to the suggested compromise, inasmuch as no question with regard to any such compromise was ever raised before either of the Courts while they had seisin of the case. It has therefore been suggested that, in these circumstances, this Court can have no jurisdiction to modify the order of the trial Court under Section 439, Criminal P.C. At the same time it is clear from the language of Section 439, Criminal P.C, read with Section 345(5A) of the Code that this Court can in certain circumstances allow a compromise to be recorded in the exercise of its revisional jurisdiction in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. The language of Section 439 is very wide and it does not limit the jurisdiction of this Court to interfere in revision merely in cases in which this Court has called for the record of a case on the ground of some alleged illegality or impropriety in the order made by an inferior Criminal Court. In the case with which we are now dealing, it is therefore suggested that this Court is competent to record the compromise having regard to the provisions of Section 345(5A), Criminal P.C, even although there is no impropriety in the order of either of the Courts below and although neither the trial Court nor the learned Judge while they were still in seisin of the case rejected any proposal to the effect that the case should be compromised. With this contention I am inclined to agree and I think that one of the objects of the Legislature in enacting Sub-section (5A) of Section 345, Criminal P.C. was in suitable circumstances to allow the parties in such cases to compromise their disputes even latter the Cases in which they were concerned had been heard and determined by the Courts competent to try them.

3. At the same time Sub-section (5A) of Section 345 of the Code is a Section which should be interpreted very strictly and with regard to which, in my view, the discretion which has been conferred upon the High Court should be exercised sparingly and only in suitable cases. The sub-section in question reads as follows:

A High Court acting in the exercise of its powers of revision under Section 439 may allow any person to compound any offence which he is competent to compound under this Section.

4. This sub-section must be read subject to the preceding sub-sections of Section 345 of the Code especially Sub-sections (1) and (2). These sub-sections in col. 3 of the tables annexed thereto set forth lists of persons by whom the offences in col. 1 may be compounded. In other words, the persons mentioned in col. 3 of these tables are the persons competent to compound the offences mentioned in col. 1. It follows therefore that Sub-section (5A) of Section 345 of the Code merely confers jurisdiction on the High Court in the exercise of its powers of revision under Section 439 of the Code to allow the aggrieved persons mentioned in col. 3 of the tables attached to Sub-sections (1) and (2) to compound the various offences mentioned in those subjections. This Section however does not empower the High Court to allow a convicted person to compromise an offence in the absence of the complainant or aggrieved person mentioned in Sub-sections (1) and (2). It would follow therefore that ordinarily the party who seeks to invoke the jurisdiction of this Court under Sub-section (5A) of Section 345, Criminal P.C., must be the person aggrieved by the offence which has been committed and not an accused person or a person who has been convicted in respect of that offence. In any event it would, in my opinion, not be competent for this Court to allow a compromise to be recorded under Sub-section (5A) of Section 345, Criminal P.C, unless the aggrieved persons were actually before this Court and had expressly recorded their consent to such a compromise being recorded.

5. In the case with which we are now dealing the complainant is not before this Court. The Rule was issued upon the application of the convicted persons and although it would appear that a copy of the rule was served upon the complainant, it is impossible from this fact alone to infer that the complainant wishes to invoke the jurisdiction of this Court for the purpose of recording a compromise under Section 345(5A), Criminal P.C. In any event in a case such as that which is now before me, I do not think that the jurisdiction of this Court should be used for the purpose of allowing a compromise to be recorded. It is clear from the record of the case that there was no suggestion that any compromise should be made until six days after the learned Additional Sessions Judge had rejected the petitioners' application for revision and I do not think that where the proceedings before the Courts below disclose no irregularity or impropriety the exceptional power which has been conferred upon this Court by Sub-section (5A) of Section 345 should ordinarily be used except in a case in which the record indicates that the parties made some attempt to compromise their differences while the matter was still before the trial Court and before that Court passed final orders in the case. Having regard to the considerations set forth above this Rule must be discharged.


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