Jagat Narayan, J. - (1.) THIS is a second appeal by the plaintiffs against a decree of the lower appellate court dismissing their suit for a permanent injunction which had been decreed by the trial court. The relief claimed was that the defendants be restrained from raising any construction over land coloured in green colour and marked as No. 4 in a plan attached to an agreement, dated 30th June, 1952 entered into between the parties. The suit was based on the agreement. The defence of the defendants inter alia was that the agreement was unenforceable as' part of the consideration for it was to stifle the prosecution of a case under secs. 147, 447 and 379, I. P. C. which was pending between the parties when it was entered into. The trial court did not frame any issue on this point. Nor does the point appear to have been raised before it at the time of arguments as there is no mention of it in its judgment. But the point was raised on behalf of the defendants before the lower appellate court and it was held that the agreement was void under sec. 23 of Contract Act as part of its consideration was to stifle the prosecution for non-compoundable offences.
(2.) THE first contention on behalf of the appellants is that there is not sufficient evidence on record from which it could be inferred that there was a criminal case involving non-compoundable offences between the parties when the agreement took place and. that part of the consideration for it was the stifling of the prosecution. In para 4 of the additional pleas in the written statement of the defendants it was pleaded specifically that there was a criminal case pending between the parties under secs. 147, 447 and 379, I. P. C. when the agreement was arrived at and the consideration for the agreement was the settlement of that case and as the offences under secs. 379 and 147, I. P. C. were non-compoundable the consideration was unlawful and the contract was void. The reply of the plaintiff to this paragraph in their replication was as follows - "para 4 is wrong. The agreement was not entered into merely for bringing to end the criminal cases but was entered into to settle all disputes between the parties and to put an end to future litigation between them and for maintaining peace in the neighbourhood and the consideration for the agreement was valid and good and was not unlawful. From these pleadings it is clear that it was admitted that there was a criminal case under secs. 147, 447 and 379, I. P. C. pending between the parties when the agreement was arrived at and that the offences under sees. 147 and 379, I. P. C. were non-compoundable and that part of the consideration for the agreement was to put an end to this criminal case. Apart from the pleadings, Son Raj defendant stated that there were criminal cases between him and Mishri Mal over the land in dispute and that he had filed copies pertaining to those cases. He filed a copy of the criminal complaint filed by Jethmal against Sohanraj and others. This copy was, however, not duly proved. On the complaint there is endorsement by the Sub-Divisional Magistrate, dated 17th June," 1952 to the effect that Jethmal complainant had filed the complaint offences and that it was being transferred for disposal to the Extra Magistrate, Bhinmal. This endorsement is admissible in evidence u/s. 74 of the Evidence Act being the act of a Judicial Officer. A copy of the order-sheet, dated 4th July, 1952, has also been filed. This is also admissible u/s. 74. It related to the case Jethmal son of Mishrimal resident of Bhinmal vs. Sonraj u/secs. 147, 447, 427 and 379, I. P. C. It is mentioned that the complainant and his lawyer were absent and the complaint was dismissed for want of evidence. Jethmal is the son of Mishrimal plaintiff who is the head of the family of the plaintiffs. Sohanraj is defendant No. 1 in this case. The other defendants are members of his family. It was in a figurative sense, that Sohan Raj stated that there was a criminal case between him and Mishrimal pending about the land in dispute. Mishrimal stated in cross-examination that he did not know whether his son Jeth Mal filed any criminal complaint on 17th June, 1952 against the defendants. It is mentioned in the agreement, dated 30th June, 1952, itself that there was a case pending between the parties and one of the terms of the agreement was that they shall respectively withdraw the cases which they had filed. In the face of the above evidence the learned District Judge was justified in coming to the finding that part of the consideration for the agreement was the stifling of prosecution for non-compoundable offences. Under sec. 23 of the Contract Act the consideration or object of an agreement is unlawful if the court regards it as opposed to public policy. What is opposed to public policy has not been defined under this Act. For that a reference has to be made to English cases. In England a distinction is drawn between offences which are matters of public concern and private offences. A private offence may be a subject of a compromise, but an offence which is a matter of public concern cannot be compromised. In India the Code of Criminal Procedure divides offences into two classes compoundable and non-compound-able and all offences falling under the latter category are matters of public concern and an agreement part of the consideration of which is to stifle prosecution of cases under such offences is void. The principle is that no court of law can countenance or give effect to an agreement which attempts to take the administration of law out of the hands of the judges and put it in the hands of private individuals. If the accused person is innocent, the law is abused for the purpose of extortion ; if guilty, the law is eluded by a corrupt compromise screening the criminal for a bribe. The leading cases on the point so far as India is concerned are the decisions of the Privy Council in Kamini Kumar vs. Birendra Nath (1) and Bhowanipur Banking Corpn. vs. Durgesh Nandini (2 ). On behalf of the appellants a distinction was sought to be a drawn between consideration and motive for an agreement and it was urged that the withdrawal of the criminal case was no part of the consideration for the agreement, but it was only a motive. If the parties had only expected that as a result of this agreement the criminal case would be withdrawn and the position had been that the case might have been withdrawn or might not have been withdrawn then it might have been, possible to argue that the withdrawal of the criminal case was a motive and not a part of the consideration for the agreement. But in the present case the withdrawing of the cases which must necessarily include the criminal case was made one of the terms of the agreement. On behalf of the appellants reliance was also placed on the decision of the Allahabad High Court in Jagdish vs. Kausilla Devi (3 ). Certain land was purchased in the name of one Bal Krishna. Bal Krishna subsequently filed a criminal complaint under Sec. 395, I. P. C. against the servants of Smt. Kausilla Devi alleging that at her instigation they had removed by force the produce of trees on the land. During the pendency of the criminal case an agreement was entered into under which Smt. Kausilla Devi who claimed to be the Benami holder of the land in dispute surrendered her rights over it. This agreement was attacked as being void under sec. 23 Contract Act. The case came up on first appeal before Mathur and Allsop, JJ. Mathur, J. held that the agreement was void as the consideration for it was to stifle prosecution for non-compoundable offences. Allsop, J. differed from him. He was of the view - "in determining whether an agreement is void under S. 23. Contract Act, the courts should look to the substance of the agreement between the parties. If there is suspicion of blackmail or extortion or if the contract was based upon a promise really to hamper the administration of law so as to prevent investigation into a criminal charge which was of interest not only to the persons concerned but to the public at large, then the contract should not be enforced. If however, there is a bona fide civil dispute which the parties have decided to settle and there happen to be subsidiary proceedings in a criminal court, it would be contrary to public policy and to justice and equity to allow any person to escape his proper legal liabilities on the mere technical ground that there was some understanding that those criminal proceedings would not be pressed to a conclusion. " The case was referred to Verma, J. who agreed with Allsop J. With all respect I am unable to agree with the opinion of Allsop J. with which Verma, J. agreed. No attempt was made by Verma, J. to meet the arguments given by Mathur, J. in support of the view which he had taken. It appears to me that Allsop and Verma, JJ. failed to draw a distinction between an agreement which is attacked on the ground of undue influence and one which is attacked as being opposed to public policy. It is not necessary that an agreement part of the consideration of which is to stifle prosecution for a non-com-poundable offence must have been obtained by undue influence in order that it may be held to be void. Once it is found that part of the consideration is to stifle prosecution for a non-compoundable offence the agreement is void even though it is arrived at by paties voluntarily without any undue influence and is otherwise fair and just. I, therefore, confirm the decree of the lower appellate court and dismiss the appeal with costs. Leave to file special appeal was sought but was refused. . ;