EMPEROR Vs. HANMANT SHRINIVAS KULKARNI
LAWS(BOM)-1929-3-10
HIGH COURT OF BOMBAY
Decided on March 18,1929

EMPEROR Appellant
VERSUS
HANMANT SHRINIVAS KULKARNI Respondents

JUDGEMENT

- (1.) In this case the accused were charged with offences punishable under Sections 147, 451, 342 and 426, Indian Penal Code, on the ground that on December 18, 1925, they being members of an unlawful assembly pulled down the banka of the complainant Irappa Balappa, and in pursuance of the object of pulling down the banka wrongfully confined him by pushing him into the house and pulled down the banka with the intent to cause wrongful loss to the complainant. The learned Magistrate on consideration of the whole evidence held that the prosecution case was proved. It is not necessary to go into the question whether the application for revision to this Court is beyond time. The delay has been excused and the application has been admitted on January 21, 1929.
(2.) The first point argued in this application is that on August 7, 1926, an application was made under Section 345 of the Criminal Procedure Code for compounding the offences with which the accused were charged. The application was signed by the complainant and by the accused and also by the pleaders of both the parties, The Magistrate, on August 7, forwarded the application to the Police Prosecutor for opinion. On August 31, the date to which the case was adjourned, no reply was received from the Police Prosecutor and it was again adjourned to September 18, and on October 14, 1926, the Magistrate ordered the case to proceed in effect holding that he was not satisfied that the compromise application was a lawful compromise under Article 345. On October 20 the Police Prosecutor declined to move the District Magistrate for withdrawal of the case. On November 27, 1026, the complainant made an application to the Collector of the District alleging that his signature on the compromise application was taken under threat and that permission should not be given to the compromise if the accused or their pleaders approached the Collector for granting the permission. It is urged before us that the learned Magistrate ought to have granted the compromise application and allowed the composition under Section 345, and reliance is placed on the rulings in Emperor v. Gana Krishna ; Sheikh Basiruddi v. Sheikh Khairat Ali (1913) 17 C.W.N. 948; Emperor v. J. John (1922) I.L.R. 45 All. 145; and Sewa Singh v. Emperor (1893) I.L.R. 21 Cal. 103.
(3.) In Emperor v. Oana Krishna there was no dispute as to the factum of the compromise. In the present case having regard to the subsequent conduct of the complainant it appears that his consent was obtained by threat and coercion by the accused. Before a composition can be allowed the Court must be satisfied, according to the ruling in Murray v. The Queen-Empress (1893) I.L.R. 21 Cal. 103 that the composition is legal and valid in law. In Sheikh Basiruddi v. Sheikh Khairat Ali there was a second complaint after the complaint with regard to the offence under Section 325 had been already compounded, and it is with reference to the second complaint that it was held that the petitioners could not be again prosecuted either for grievous hurt or house trespass or being members of an unlawful assembly the common object being to commit offences which had been compoxmded. In Emperor v. J. John the Court was satisfied that there was a legal and valid composition. In Sewa Singh v. Emperor it was held that it is the duty of the Magistrate, in each case which is compound-able with his leave, to decide whether he will or will not allow a compromise and the responsibility rests entirely with him, and that where the offence is not of a serious nature and ft compromise is arrived at, at a very early stage, the Magistrate ought to allow the compromise. In the present case the compromise was at a late stage of the case and some of the offences were not compoundable, for the offence under Section 451 was compoundable only with the leave of the Court and the offence under Section 143 which was embodied in the charge or the offence under Section 147 of rioting which was mentioned in the complaint was not compoundable even with the permission of the Court. The learned Magistrate held that as a matter of fact the accused were guilty under Section 447 and not under Section 451. The point, however, remains that with regard to the offence under Section 143 the Magistrate had no jurisdiction to allow the composition. We are not satisfied in this case that there was a lawful composition between the parties, and it would, therefore, follow that the order of the Magistrate allowing the case to proceed is not erroneous.;


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