Sheosaran Thakur and Others vs Bishwanath Thakur

S.N.P. Singh, J.—All the six petitioners have been convicted u/s 379 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for one month. They have also been convicted u/s 447 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for one month. Sheo Saran Thakur (Petitioner No. 1) has been further convicted under Sections 324 and 148 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for two months under each of the counts. Ram Ratan Thakur (petitioner No. 3) and Ram Dayal Thakur (petitioner No. 6) have been convicted u/s 323 of the Indian Penal Code and u/s 147 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for one month under each count. Ram Saran Thakur (petitioner No. 2), Benarsi Thakur alias Birender Sharma (petitioner No. 4) and Dharam Nath Thakur alias Dharam Nath Sharma (Petitioner No. 5) have also been convicted u/s 147 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for one month. The sentences on the petitioners for the various offences have been ordered to run concurrently.

The application in revision filed by the petitioners was admitted only on the question of sentence. It appears that consequently a petition of compromise between the complainant and the petitioners was filed in this Court. On the 26th of April, 1967, when the revisional application came up for hearing before the learned single judge, a question arose whether permission to compound the offences could be granted when a revisional application has been admitted on the question of sentence only.

Learned Counsel appearing for the petitioners relied on two unreported decisions of this Court, namely Cr. Rev. No. 72 of 1962 (unreported) and Cr. Rev. No. 856 of 1966 (unreported) in which permission to compound the offences had been given although the revisional applications had been admitted only on the question of sentence. Reliance was also placed on a Bench decision of this Court in Shaikh Idris and Others Vs. Emperor, where the accused had been acquitted although the application in revision had been admitted only on the question of sentence. The learned single judge, however, took the view that the question as to whether an order allowing compromise could be passed by the court when an application in revision has been admitted only on the question of sentence was neither raised nor decided in the case of Shaikh Idris and Others Vs. Emperor, . According to the learned Judge, when the conviction and sentence of an accused as made by the trial court and upheld by the appellate court are challenged in a revision petition and after hearing counsel for the petitioner an order is passed admitting the petition on the point of sentence only, that order amounts to a rejection of the petition on all the points except the point of sentence and it has the effect of confirming the conviction of the petitioner under the different Section s as made by the lower appellate court. That being the position, it is no longer open to this Court to set aside the conviction either on hearing the case on merits or on basis of any compromise that may be subsequently entered into by the parties as this would in effect amount to a reversal of the order passed by this Court at the time of admission of the petition.

After hearing learned Counsel appearing for the petitioners and learned Counsel appearing for the State, who assisted the Court in this case also,. I am of the opinion that in the instant case it is not necessary to go into the wider question whether the High Court can or cannot consider the case on merit at the time of final hearing when an application, in revision has been admitted only on the question of sentence. I may only state that there are instances in which this Court has interfered on merit at the time of hearing although the applications in revision have been admitted only on the question of sentence. Reference may be made to the case of Hussain Buksh Mian v. King-Emperor ILR 3 Pat 804 Cr. Rev. No. 92 of 1928 decided on 13-3-1928 and Cr. Rev. No. 190 of 1938 decided on 18-5-1938.

There is no scope for a divergent view on the point that when an order admitting the revisional petition on the question of sentence only is passed by the High Court, the order amounts to a rejection of the petition on merit. The question, however, whether the High Court can or cannot exercise its powers to allow the composition of an offence depends on the interpretation of Sub-sections (5A) and 6 of Section 345 of the Code of Criminal Procedure. The power which the High Court exercises in allowing composition of an offence is not one of the powers which have been conferred on the High Court u/s 439 of the Code of Criminal Procedure. That power has been specifically conferred on the High Court under Sub-section (5a) of Section 345 of the Code of Criminal Procedure which Reads as follows:

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 his Section.

A. plain meaning of the subsection makes it clear that the power can be exercised by the High Court during the pendency of the revisional application. The High Court begins to act from the time it admits the revisional application and continues to exercise the revisional powers till the revision is finally disposed of. After the revisional application is decided the High Court becomes functus officio. In my opinion, it will make no difference whether the revision has been admitted only on the question of sentence or an open rule has been given at the time of admission. As long as a re vision is not finally disposed of, in terms of Sub-section (5A) of Section 345 of the Code of Criminal Procedure, the High Court can exercise the power of allowing composition of an offence in appropriate cases. The provisions of Sub-section (6) of Section 345 of the Code of Criminal Procedure will not, in my opinion, stand in the way of the exercise of the powers of the High Court in allowing the composition of an offence in those cases in which the applications have been admitted only on the question of sentence. Sub-section (6) of Section 345 only lays down that the composition of an offence u/s 345 shall have the effect of an acquittal of the accused with whom the offence has been compounded. The words "shall have the effect of an acquittal" are of great significance and imply that all the incidents attaching to an actual acquittal on merit will be brought into operation by the composition of an offence but it will not be an acquittal on merit. The High Court, therefore, while exercising its powers under Sub-section (5A) of Section 345 of the Code of Criminal Procedure in allowing composition of an offence will not be interfering with the merit of the case. That being the position, it is immaterial whether an open rule was given at the time of admission or the application was admitted only on the question of sentence.

For the reasons stated above, I am clearly of the view that the power of the High Court is not fettered in any way in allowing the composition of an offence simply because the application, in revision has been admitted only on the question of sentence. I must, however, make it clear that in terms of Sub-section (5A) of Section 345 of the Code of Criminal Procedure the High Court will have no power to allow the composition of an offence when an application has been dismissed in limine at the time of admission or after the dismissal of the application on final hearing.

Now remains to consider the question whether it is a fit case, in which permission to compound the offences should be given. It appears that the value of the property which was alleged to be stolen was about Rs. 25/- only. It is stated in the compromise petition that the petitioners and the complainant are very near agnatic relations and they have made up their difference at the intervention of common friends, relations and well-wishers. Bishwa Nath Thakur, the complainant of the case, has sworn affidavit in support of the statements contained in the compromise petition. On the facts and circumstances of the case, I am of the view that this is a fit case in which permission to compose the offences under Sections 379, 447, 323 and 324 of the Indian Penal Code may be given. I accordingly allow the composition of the aforesaid offences between the petitioners and the complainant and set aside the convictions and sentences passed on the six petitioners under Sections 379 and 447 of the Indian Penal Code. 1 further set aside the conviction and sentence passed on Sheo Saran Thakur (petitioner No. 1) u/s 324 of the Indian Penal Code and the conviction and sentence of Ram Ratan Thakur (petitioner No. 3) and Ram Dayal Thakur (petitioner No. 6) u/s 323 of the Indian Penal Code. As the offence of rioting is not compoundable, no permission to compound the offence u/s 148 of the Indian Penal Code for which Sheo Saran Thakur has been convicted and the offence u/s 147 of the Indian Penal Code for which the remaining five petitioners have been convicted can be given. Regard being had to the fact that good feelings have been restored between the parties, who happen to be near agnatic relations, I set aside the sentence of two months'' rigorous imprisonment imposed on Sheo Saran Thakur u/s 148 and the sentence of one month''s rigorous imprisonment each on the remaining five petitioners u/s 147 of the Indian Penal Code and impose a sentence of fine Rs. 10/- on Sheo Saran Thakur u/s 148, in default to undergo rigorous imprisonment for two weeks, and a sentence of fine of Rs. 5/- on each of the remaining five petitioners, in default, to undergo rigorous imprisonment for one week, while affirming the conviction of Sheo Saran Thakur u/s 148 and the conviction of the remaining five petitioners u/s 147 of the Indian Penal Code.

In the result, the application is disposed of in the terms as stated above.

B.N. Jha, J.

I agree.