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Sk. SaifuddIn Mondal Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1983CriLJ109
AppellantSk. SaifuddIn Mondal
RespondentState and anr.
Cases ReferredRamesh Chandra J. Thakur v. A. P. Jhaveri
Excerpt:
- .....the accused for stay of the proceeding as his appeal was pending before the appeal committee. the learned magistrate by an order dated march 5, 1976 stayed the criminal proceeding till disposal of appeal case no. 1 of 1973 pending before the appeal committee of the west bengal board of secondary education. the said order of the learned magistrate was challenged before this court in criminal revision case no. 536 of 1976. the rule was made absolute on april 6, 1977 and the order of the learned magistrate dated march 5, 1976 was set aside and the learned magistrate was directed to proceed with the trial. the petitioner on the death of his father was elected secretary and he was prosecuting the case on behalf of the managing committee of the school. the managing committee was superseded.....
Judgment:
ORDER

S.N. Sanyal, J.

1. Ahadali Mondal, father of the petitioner Sk. Saifuddin Mondal, filed a complaint against opposite party No. 2 Jamaluddin Ahmed, describing himself as the Secretary of the Parul Union Amjad High School alleging that opposite party No. 2 as Headmaster of the said school had committed criminal breach of trust in respect of Rs. 2,010/-. After investigation the police submitted a charge-sheet against opposite party No. 2 under Sections 408/406 of the Indian Penal Code. The accused opposite party No. 2 was on bail and the case proceeded before the Chief Judicial Magistrate, Birbhum. Service of opposite party No. 2 was terminated and thereafter he appealed to the appeal committee of the West Bengal Board of Secondary Education. Before consideration of charge a prayer was made on behalf of the accused for stay of the proceeding as his appeal was pending before the appeal committee. The learned Magistrate by an order dated March 5, 1976 stayed the criminal proceeding till disposal of Appeal Case No. 1 of 1973 pending before the Appeal Committee of the West Bengal Board of Secondary Education. The said order of the learned Magistrate was challenged before this Court in Criminal Revision Case No. 536 of 1976. The Rule was made absolute on April 6, 1977 and the order of the learned Magistrate dated March 5, 1976 was set aside and the learned Magistrate was directed to proceed with the trial. The petitioner on the death of his father was elected Secretary and he was prosecuting the case on behalf of the managing committee of the school. The Managing Committee was superseded and an Administrator was appointed. The case was fixed for hearing on February 15, 1979 for framing of charge. On that date an application was filed by the Administrator of the school praying for permission of the Court under Section 320 of the Code of Criminal Procedure for compounding the offence and for acquitting the accused. The learned Magistrate by an order dated February 15, 1979 granted the leave. The case was compounded and the accused was acquitted under Section 320(8) of the Code of Criminal Procedure. The petitioner has challenged the said order of the learned Magistrate in the present Rule.

2. Mr. Bose, learned Advocate for the petitioner, has argued that the learned Magistrate had no competence to grant permission for compounding the offence as the offence is a non-compound-able one. Mr. Bose has argued that the complaint was that there was criminal breach of trust in respect of a sum of Rs. 2010/-. The police submitted a charge-sheet under Sections 408/406 of the Indian Penal Code. According to Section 320 of the Code of Criminal Procedure, an offence punishable under Section 406 of the Indian Penal Code may be compounded by the persons mentioned in the third column of the table with the permission of the Court before which any prosecution for such an offence is pending, Mr, Bose contends that such compounding is permissible only where the value of the property does not exceed Rs. 250/-. Mr. Bose further contended that in the case of an offence punishable under Section 408 of the Indian Penal Code also compounding may be made where the value of the property does not exceed Rs. 250/-. Mr. Bose thus submits that in the instant case the charge-sheet shows that the offence was in respect of a sum of Rs. 2010/- and as such there could be no compounding of the offence under Section 320 of the Code of Criminal Procedure and the learned Magistrate has acted illegally and in contravention of the express provisions of law by granting permission for compounding the offence and by acquitting the accused. Referring to the decision reported in the case of Ramesh Chandra J. Thakur v. A. P. Jhaveri : 1973CriLJ201 Mr, Bose has argued that the High Court can set aside the acquittal based on compounding of non-compundable offence in exercise of its revisional jurisdiction. Mr Bose contends that in the instant case the impugned order of the learned Magistrate should be set aside and the case be sent back for being proceeded with in accordance with law,

3. The complaint was made by Ahadali Mondal, Secretary of the School and the said complaint was treated as F.I.R. and after investigation the police submitted a charge-sheet against opposite party No. 2 under Sections 408/406 of the Indian Penal Code. The charge-sheet shows that the complaint was that there was criminal breach of trust in respect of a sum of Rs. 2010/-. As the sum involved exceeded Rs. 250/- the offence alleged could not have been compounded under Section 320 of the Code of Criminal Procedure. In the case of an offence punishable under Section 406 of the Indian Penal Code the compounding can be made only when the criminal breach of trust in respect of the property does not exceed Rs. 250/-. Similarly also an offence punishable under Section 408 of the Indian Penal Code cannot be compounded if the criminal breach of trust in respect of the property exceeds Rs. 250/-. The learned Magistrate can only exercise jurisdiction in the matter of granting permission where the offence is compoundable. No offence can be compounded except as provided by Section 320 Cr. P.C. It has been held by the Supreme Court in the decision referred to above that when an acquittal is based on the compounding of an offence and the compounding is invalid under the law the acquittal would be liable to be set aside by the High Court in exercise of its revisional jurisdiction. As the acquittal of opposite party No. 2 by the learned Magistrate in the present case was based upon the compounding of an offence which is not compoundable the said acquittal should be set aside. Where the Magistrate acquits the accused on the basis of compounding of an offence which is not compoundable under the law the High Court may exercise its revisional jurisdiction either suo motu or on being moved by any other person.

4. The application thus succeeds and the Rule is made absolute. The impugned order of the learned Magistrate dated February 15, 1979 is set aside. The learned Magistrate is directed to proceed in accordance with law from the stage reached prior to the recording of the order dated February 15, 1979.

5. Let the records be sent down at once.


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