State of U.P. vs Janni and Others

K.N. Srivastava, J.—This is an appeal against the judgment and order passed by Sri M. P. Gautam, Magistrate 1st Class, Roorkee, district Sahranpur, acquitting the respondents of an offence u/s 323, I. P. C., and Section 147, I. P. C.

The facts, giving rise to this appeal, are as follows. Faiyaz, who is a resident of Sikandarpur, thana Fatehpur, district Sahranpur, lodged a report on 30-1-1965 at thana Fatehpur. The allegations in the report were that a nephew of Faiyaz was taking his bullocks to the field for ploughing. The bullocks damaged the crop of Aziz. The nephew of Faiyaz immediately drove out the bullocks, but he was slapped by Aziz and Idris. Faiyaz asked them not to slap his nephew. Thereupon all the respondents assaulted him with lathis. Faiyaz received a number of injuries. His injuries were medically examined. The Police registered a case against the respondents u/s 147, I. P. C. and Section 323, I. P. C. After completing the investigation, the police challaned the respondents. The parties filed a compromise for compounding the offence u/s 323, I. P, C. This compromise was verified and the trial Court passed the following order:--

"The injured complainant Faiyaz has compounded the offence u/s 323, I. P. C. against the accused. The accused are thus acquitted u/s 323, I. P. C.

The charge-sheet u/s 147, I. P. C. has also been submitted. The learned counsel for the accused has relied upon the ruling cited in Gowdappa Gowda and Others Vs. Tippangowda and Others, The charge u/s 147, I. P. C. also jolts when the offence has been compromised by the injured." Against this order, the State has come up in appeal to this Court.

It was argued by the learned Assistant Government Advocate that the offence u/s 147, I. P. C. was not compoundable and the trial Court was wrong in acquitting the respondents of the offence u/s 147, I. P. C.

In Gowdappa Gowda and Others Vs. Tippangowda and Others, cited by the trial Court, Syed Naqui Imam, J., has held as below:--

"Mr. Baidya Nath Prasad appearing for the petitioners has pointed out to me that before the trial Court there was a compromise petition filed, and the trial Court accepted the compromise so far as the offence u/s 323, Indian Penal Code was concerned. Now that the appellate Court has found these petitioners guilty under Sections 323 and 323/34, Indian Penal Code, in my opinion, the compromise petition can be put into effect even at this stage. There now remains the charge u/s 147, Indian Penal Code which is not compoundable. But it appears that the common object of the unlawful assembly was to assault. If the charges under Sections 323 and 323/34, Indian Penal Code fail on account of the compromise, it is obvious that the charge u/s 147, Indian Penal Code must also fail because the common object was to assault."

This question was the subject matter of decision in a number of cases. It appears that all the case law on the question was not placed before the Court in Gowdappa Gowda and Others Vs. Tippangowda and Others,

In The Crown v. Muhammad Hussain Cri LJ 1016 : AIR 1950 Lah 121 Muhammad Jan and Kayani, JJ. reviewed the entire law on the subject, and held that if the offence u/s 324, I. P. C. was compounded by the permission of the Court, then the charge u/s 148, I. P. C. should not fail on that account and should be tried.

The earliest case on this subject is Venkanna v. Crown AIR 1923 Mad 592. In this case, the accused were convicted under Sections 143 and 447, I. P. C. The offence u/s 447, I. P. C. was compounded. It was argued that the common object of the accused was to commit an offence of trespass and. as the offence of trespass was compounded, therefore, the offence u/s 143, I. P. C., ipso facto, failed. This argument was not accepted; and Wallace, J. observed as below:--

"I am not prepared to support this contention. The essence of the offence u/s 143, Indian Penal Code, is the combination of several persons united in the purpose of committing a criminal offence and that purpose constitutes in itself an offence distinct from the Criminal offence which these persons agree and intend to commit. The compounding o� one offence does not mean that the offence has not been committed, but that it has been committed, though the victim is willing either to forgive it or to accept some form of solatium is sufficient compensation for what he has suffered."

Another case is Emperor v. Jarnali AIR 1925 Lah 464. In this case, the accused were charged u/s 325, I. P. C. and Section 147, I. P. C. The offence u/s 325, I. P. C. was compounded with the permission of the Court It was argued that after the acquittal of the accused of the offence u/s 325, I. P, C., the offence u/s 147, I. P. C. ipso facto, fell down. Campbell, J. observed as below:--

"If he had referred to Section 403 (2), Criminal P. C. and had read with it Section 235 (1) and illustration (g) to that Sub-section he would have perceived that an acquittal u/s 345, Criminal P. C., of an offence u/s 325, Indian Penal Code, constitutes no bar to the subsequent trial of the accused on a charge u/s 147, Indian Penal Code."

In Gurunarayan Das v. Emperor, AIR 1948 Pat 58 the accused were charged under Sections 325 147 and 148, I. P. C. This was a Division Bench case. Meredith, J. observed as below:--

"The convictions are not only for grievous hurt and hurt, but also under the rioting Sections 147 & 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."

Bennett, J. agreed with the judgment of Meredith J.

In Agha Nazarali Sultan Muhammad v. Emperor, AIR 1941 Sind 186 which is a Division Bench case, the aforesaid Madras case was followed, and it was held that if the other offence was compounded it did not mean that the offence u/s 143, I. P, C. also fell down. In this connection, the following observations can be read with advantage:---

"On the point that an offence u/s 143, Penal Code, is a distinct and separate offence in itself distinct and separate from an offence which it is the common object of the unlawful assembly to commit, and that although this latter offence may by itself be compounded, the offence u/s 143, Penal Code, is not compoundable as a matter of public Policy, being an offence in the fullest sense of the term against the public peace, there is the authority of the Madras High Court, ILR 4G Mad 257 : (AIR 1923 Mad 592)."

Unlawful assembly has been defined in Section 141, I. P. C, The first, second, fourth and fifth Clauses of this section would not apply to the facts of the present case. The third Clause, which would be applicable, reads as below:--

"To commit any mischief of criminal trespass or other offences; or"

It was argued that if an unlawful assembly was formed with an object to commit a crime and if it was found that the accused were not guilty of any offence, then the accused should not be held to have formed the unlawful assembly.

Section 146, I. P. C. defines rioting and Section 147, I. P. C., lays down the punishment for rioting by an unlawful assembly. The respondents formed an unlawful assembly and, in prosecution of the common object of the assembly, they committed violence and assaulted the complainant. The offence u/s 147, I. P. C. is certainly separate from the offence u/s 323, I. P. C.

The compromise would result in the acquittal of the respondents of the offence u/s 323, I. P. C. This would not go to show that they did not commit any violence as members of the unlawful assembly. In compromise case, the acquittal is recorded simply because the parties come to terms. It does not mean that no offence was committed at all. On the other hand, admitting that the offence had been committed, the parties patch up their differences and enter into compromise, so that they may live peacefully in future. It is for this end that composition of certain kind of offence is permitted.

It should be noticed here that certain offences, which are of aggravated nature, are excluded from the operation of Section 345, Criminal P. C., under which the offences are compounded. The offence u/s 147, I, P. C., is against the public tranquillity and is of an aggravated nature. It has, therefore, been taken out from the orbit of Section 345, Cr. P. C.

In my opinion, the acquittal of the respondents of the offence u/s 323, I. P. C., on the basis of the compromise would not go to show that the offence u/s 323, I. P. C., was not at all committed. It will, therefore, be not correct to say that the respondents did not commit violence in prosecution of the common object of the unlawful assembly. I have already observed in the earlier part of this judgment that in Ramphal Gope and Others Vs. The State of Bihar, the earlier decisions were not taken into consideration, and the Judgment in that case was based on the finding that if the charges under Sections 323 and 323/34, Indian Penal Code, failed on account of the compromise, the charge u/s 147, Indian Penal Code, also failed because the common object was to assault. With due deference, I do not subscribe to this view.

After taking into consideration the rulings of different High Courts on this question, I am of the opinion that the composition of the offence u/s 323, I. P. C., did not amount to acquittal of the respondents of the offence u/s 147, I. P. C. The learned trial Court has, therefore, wrongly acquitted the respondents of the offence u/s 147, I. P. C.

ORDER

The appeal is allowed. The order of the trial Court acquitting the respondents of the charge u/s 147, I. P. C., is set aside. Let the record of the case be sent down to the trial Court for trying the respondents for the offence u/s 147, I. P. C, in accordance with law.