Gurunarayan Das and Others vs Emperor

Meredith, J.—The convictions of and sentences upon the petitioners as reduced by the appellate Court, are as follows:

Gurunarayan Das--Nine months and a fine of Rs. 100 u/s 825, Penal Code, and six months, to run concurrently, u/s 147. Bhagwat Mahto and Jagarnatn Singh--three months u/s 328, and three months, concurrently, u/s 147. Ramjatan Mahto--six months u/s 324, and six months, concurrently, u/s 148.

The relevant facts are as follows: Gurutahal Das a step-brother of Gurunarayan Das, had brought a suit for partition. As a result of that, according to the findings of the Courts of fact, on 28th March 1942, the petitioners made an attempt to eject Gurutahal Das and his brother, Sheotahal Das, from the family house by force. A fight ensued in which Gurutahal, in addition to other slight injuries, had both bones of his right fore-arm fractured. Jai Narain, however, a brother of Gurunarayan, was killed by someone on Sheotahal''s side by a spear blow. A murder case ensued in which one Karu Sahu was convicted and condemned to death; but the conviction and sentence were set aside by the High Court, so that the case eventually ended in acquittal. The trial of the case against the petitioners was held up pending the disposal of the murder case. Hence the long delay.

The only point which has been urged in revision is that the parties have arrived at a compromise, and a petition of compromise has been filed on behalf of both sides. It is urged that the offences under Sections 325, 324 and 323 are compoundable with the permission of the Court, and under Sub-section (5A) of Section 345, Criminal P.C, a High Court acting in the exercise of its powers of revision u/s 439 may allow any person to compound any offence which he is competent to compound under the section.

The jurisdiction to allow a compromise in suitable cases in revision, even after the conviction, and dismissal of the appeal, is undoubtedly there, and there are rulings to that effect, of which I may refer to Junto Sherkhan v. Emperor AIR 1934 Sind. 122 and Baburali Sardar and Others Vs. Kala Chand Bepari and Others, . At the same time, it seems to me that the occasions when the Court may properly allow a compromise and set aside convictions at this stage must be rare indeed. In the Sind case, the learned Judges said:

The Court will always be reluctant to grant leave where it finds that an accused person has been rightly convicted. To allow compromises in such cases would have the effect of enabling offenders, and particularly convicted persons, to obtain their release from jail by bribing the complainant.

And they went on to observe,

Had we been satisfied that the findings given by the appellate Court were findings of fact which could not fee disturbed in revision, we would surely have refused to accept the compromise in this case.

In the Calcutta case, Edgley J. said:

The exceptional power which has been conferred upon the High Court by Sub-section (5A) of Section 345, should not be used except in a case in which the record I indicates that the parties made some attempt to compromise their differences while the matter was still before the trial Court and before the Court passed final orders in the case.

I respectfully agree with these observations. In the present case it is not suggested that there was any attempt at compromise until after the accused had not only been convicted, but their appeal had been dismissed except for a reduction of the sentences.

There is another difficulty with regard to the application before us. The convictions are not only for grievous hurt and hurt, but also under the rioting Sections 147 and 148. The offences under these sections are not compoundable at all, and, therefore, no acquittal could be allowed by reason of the compromise in regard to the convictions under these sections. To allow acquittals under the hurt sections would make no difference if the rioting convictions and sentences stand, except with regard to Gurunarayan Das, petitioner 1.

There is, however, one feature of the present case which cannot be lost sight of, and that is the inordinate delay in the case. The offences took place as far back as March, 1942. It would be somewhat unreal to send the petitioners back to jail now to Serve out their sentences, nearly four years after the offences. There seems to be no doubt that the parties have settled their differences, and it is stated that, if the compromise is allowed, there is some hope that the partition suit may also be amicably settled, and further litigation may be avoided. Taking these circumstances together, I am of opinion that this case may be regarded as exceptional, and in the circumstances I would allow the application to compound the offences under Sections 325, 324 and 323 and direct that the petitioners be acquitted so far as those convictions are concerned. With regard to the convictions under Sections 147 and 148,1 would, in Gurunarayan Das''s case, reduce the sentence of six months to the period of imprisonment already undergone, which I am informed is ten days, plus a fine of Rs. 100. I understand that this fine has already been paid, and we are asked to make an order that it should be refunded. The petitioner Gurunarayan has been found to have been the aggressor and he, certainly, inflicted a very serious injury, and I do not think any sufficient cause has been made out for remitting the fine. In the case of the remaining three petitioners, while maintaining the convictions under Sections 147 and 148, I would reduce the sentence to the period of imprisonment already undergone.

Bennett J.

I agree. It is as important that justice should appear to be done as that it should be done. In sending these petitioners to prison now to serve out short sentences of 3, 6 and 9 months, four years after the date of the offences, in the circumstances, where the aggrieved persons are not only willing but have arrived at an agreement to compromise, the whole position appears to me to contain a large element of incongruity. I think that Sub-section (5A) of Section 345, Criminal P.C., was designed to meet just the kind of exceptional case as is presented in this revision. I, therefore agree that the compromise should be sanctioned and that the sentences under Sections 147 and 148 should be reduced and altered as suggested by my learned brother.