Procedure to be followed by Magistrate if there is compounding of offence

 It clearly means that there had been a compromise in this case before the District Magistrate after lodging of the report. The legal position is very clear. An offence under Section 352 of the IPC is compoundable even without the permission of the Court. A composition is an arrangement whereby there is settlement of the differences between the injured party and the person against whom the complaint is made. It is not necessary that the composition should be in writing, it may be oral. If both the parties agree that there has been a compromise, then the Court has to dispose of the case in terms of that compromise and the is to be acquitted. If on the other hand, parties differ then the Court has to call upon them to lead evidence and then record a finding on such evidence whether the allegations regarding the compromise are true or not.

14. In the present case, there is no dispute as regards the factum of the compromise. This fact has been narrated by the complainant first informant himself in his deposition both in examination-in-chief and also in cross-examination and it is clearly made out that on account of the intervention of the District Magistrate, the matter was compromised. The suspension order against Sri. Naresh Chandra Jauhari was withdrawn and he was reinstated and thereafter the complainant had no grievance left against the revisionist. It has been laid down in the case of Mohammad Mansoor v. Hira Singh AIR 1959 627, that the effect of a compromise is automatic. Wherever the composition of an offence takes place it has instantaneous effect of acquittal of the accused. Therefore, whenever it is contended before the Magistrate that the applicant stood acquitted on account of composition of the offence, it also meant that his trial was barred by Section 403 Code of Criminal Procedure and it was the duty of the Magistrate to decide the matter in this respect.

IN THE HIGH COURT OF ALLAHABAD

Criminal Revision No. 605 of 1983

Decided On: 04.12.1987

Naresh Chandra Jauhari Vs.  State of U.P.

1. This criminal revision is directed against the judgment and order dated 11-4-1983 passed by Mr. Sushil Kumar, the then Sessions Judge of Pilibhit. The learned Judge had partly allowed the criminal appeal No. 19 of 1983. He had upset the judgment of the Vth Addl. Munsif Magistrate, Pilibhit dated 23-2-1983 in Criminal case No. 590 of 1982 in part. The learned Magistrate had convicted Naresh Chandra Jauhari both under Sections 452 and 353 IPC and sentenced him to six months rigorous imprisonment under Section 452 IPC and to six months rigorous imprisonment under Section 353 IPC. He had also directed the two sentences to run concurrently. The learned Sessions Judge set aside the conviction and sentence under Section 452 IPC, but maintained the conviction under Section 353 of the IPC but reduced the sentence awarded to two months' rigorous imprisonment.

2. Briefly stated, the facts of the case were that on 11-5-1981 the was a clerk in the Election Office of Pilibhit Collectorate and Mr. Srikrishna Arya was posted as Sub-Divisional Magistrate, Pilibhit and perhaps was looking after the election office also. It so happened that Sri. Srikrishna Arya had returned from a meeting with the District Magistrate and after having taken his lunch, he was in his drawing-room, when at about 2.45 P.M. Naresh Chandra Jauhari came to his house. He indicated that he had come to obtain signatures of Mr. Arya on some election office papers. It is contended that Mr. Arya told him that he would sign the papers in office and not at his residence. Then it is said that the applicant Naresh Chandra Jauhari misbehaved with Mr. Arya. There was some exchange of hot words and then Naresh Chandra Jauhari raised his hands which gesture indicated that he wanted to give a blow to the officer and thus assaulted him. The Officer's chaprasi who was present, intervened and when Mr. Arya told the accused-revisionist that he was going to ring the District Magistrate, the revisionist is said to have left the place. At 3.25 P.M. that very day the first information report was lodged by Mr. Arya. It was duly investigated and a charge-sheet was submitted.

3. The contention cf the revisionist was that the whole story was bogus. He had definitely visited Mr. Arya at his house to have his signatures on certain election office papers but he neither assaulted Mr. Arya nor misbehaved with him. He gave out that he was at a loss to understand why he was being prosecuted in this case.

4. Two witnesses were examined on the side of the prosecution. Mr. Srikrishna Arya entered the witness box as PW 1 in support of his case. He gave all the details of the occurrence. Strangely enough he was not cross-examined about the factum of the occurrence as well as the sequence in which it took place and the only cross-examination that was directed to him was to elicit that when the matter reached the District Magistrate subsequently there was a hush up of the matter by way of compromise and the revisionist begged to be excused and was promptly excused and thereafter Sri. Arya had no complaint left against him. The District Magistrate even directed Mr. Arya to withdraw the case. The second witness for the prosecution was the Orderly who simply came to say that the present revisionist had visited Mr. Arya's house on that date and at that time, but he did not support the prosecution story regarding the assault or use of criminal force.

5. Nevertheless on account of the unconfroverted testimony of Mr. Arya both the Courts below accepted prosecution version of the occurrence. The Sessions Judge was, however, of the view that no case under Section 452 of the IPC would be deemed to have been made out, because there was nothing on the record to show that the revisionist had gone to Mr. Arya's house after having made preparations to commit any offence. It appears that Mr. Arya as Sub-Divisional Magistrate of Pilibhit and perhaps in his capacity as Election Officer, was getting papers at his house and officials were visiting his house also for official work. Under these circumstances, the learned Sessions Judge was justified in coming to the conclusion that the visit of the revisionist at the house of Mr. SriKrishna Arya, in the absence of any evidence regarding his intention to commit trespass with a view to commit an offence cannot be covered by Section 452 IPC. The charge under Section 452 IPC was, therefore, rightly found not proved. The learned Sessions Judge however was of the view that it was a case to be covered by Section 353 IPC and not by Section 352 IPC.

6. There is some importance in this case attached to the fact whether Section 352 IPC will1 apply or Section 353 IPC will apply and the basis of this is that Section352 IPC is comparatively a minor offence and it is not cognizable and is compoundable, while Section 353 IPC defines a graver offence which is neither cognizable nor compoundable.

7. We have therefore to find out as to under what provisions of the Indian Penal Code, the guilt of the accused-revisionist will fall. The prosecution evidence of Mr. Arya having been believed (as it has not been challenged through any cross-examination at all), the learned Sessions Judge in para 8 of his judgment has taken note of the fact that the revisionist had gone to the house of Mr. Arya to obtain his signatures on some official papers. Obviously it was not a private visit. The learned Sessions Judge has also noticed that an officer can be on duty at home and also in the Office. Section 352 IPC is generally a provision of law which applies to all the cases in which assault or use of criminal force to any person otherwise than on grave and sudden provocation given by that person, is alleged. Section 352 IPC requires two further ingredients in order to be applicable. The first is that the assault or use of criminal force should be to a public servant and the second is that it should be at a time when the public servant is discharging the duty imposed upon him by virtue of his office. In other words when a public servant is performing an act which is so integrally connected with the duty attached to his office as to form part of it and he is assaulted or use of criminal force is made against him, then the offence shall be graver and shall be covered by Section 353 of the IPC. Mr. Arya was undoubtedly a public servant. This fact is neither disputed nor denied. He was an Executive Magistrate posted as Sub-Divisional Magistrate of Pilibhit and the circumstances show that he was also officially connected with the election work. He, therefore, was a public servant in terms of Section 353 IPC.

8. The question however remains whether at the time of the assault that was made in this case he was in execution of his duty as such public servant; or whether this assault or use of criminal force was made with intent to prevent or deter him from discharging his duty as such a public servant or in consequence of anything done or attempted to be done by him in the lawful discharge of his duty as such public servant 1 agree with the learned Sessions Judge that an officer abetter designated as a public servant) can be on duty at home as well as in the office. But I do not agree with him that a public servant is constantly on duty whether he is in office or at his house and at all times and all hours of the day and night. No law lays down that if he is designated as a public servant then he should be deemed to be on duty all through and always. The very use of specific words in Section 353 IPC shows that a public servant can be in execution of liis duty as such a public servant at a particular time and at another occasion he may not be doing anything connected with his duty according to law. This section will only apply when a public servant is discharging the duty imposed on him by virtue of his office. It seems to have been proved that at the time when the assault took place or criminal force was used, he was not performing any act which may be so vitally connected with the duty attached to his office as to form an integral part of it. The public servant taking meals at his house is not on official duty. And similarly when he is in his drawing-room doing no official work, he cannot be deemed to be busy in execution of his duty as such public servant. In the present case, there is absolutely no allegation or evidence of the fact that the revisionist Naresh Chandra Jauhari assaulted Mr. Arya or used criminal force against him with the intention to prevent or deter him from discharging his duty as such public servant, or that he did so in consequence of anything done or attempted to be done by Mr. Arya in the lawful discharge of bis duty as such a public servant. There is nothing on the record to show that there was any previous enmity between the parties or that the revisionist had any reason to ensure that Mr. Arya did not discharge his official duties and with that aim in view he used criminal force and committed this assault. There is also nothing on the record to show that Mr. Arya had done anything in the lawful discharge of his duty as such public servant or was going to do anything in the lawful discharge of his duty as such a public servant and as a consequence of the same this assault was made on him. I will not agree with the learned Sessions Judge that because it was part of the duty of the Sub-Divisional Magistrate to sign documents even of the election office not only at in his office but also at his home, hence he will be deemed to be busy in the execution of his duty as such a public servant at all times that he remained at his house. If he was doing some official work at his house at the time of this use of criminal force and assault then of course the case will be covered by Section 353 IPC. But in the present case the evidence simply shows that the revisionist entered his drawing room and told that his signatuses were required on certain papers. I may agiee with the learned Sessions Judge that since the revisionist had gone there on official business he (the revisionist) was on official duty but when Mr. Arya refused to sign those documents at home and directed that they may be placed before him in the office, then it simply shows that he (Mr. Arya) was not doing any official work at his home at that time.

9. A distantly akin case came up before the Supreme Court in the matter of D. Chattiah v. State of Andhra Pradesh 15 (1978) ACC 302. It was a case under Section332 of the IPC. The allegations were that SheikhMastban was a typist in the Panchayat Samiti. In the same office, Appellants Nos. 1 and 2 and the accused uravareddy were working as Health Inspector, Lower Division Clerk and Health Worker respectively attached to he Primary Health Centre. It was alleged in the first information report that wbile Sheikh Masthan was attend-ing to his work in the office, the three accused persons who worked in the same office, approached and uestioned him as to why he had abused them on an earlier occasion. When the informant denied the accusation, hey beat him and one of them used a stick and scissors. It was found during evidence that the incident was the equel of private quarrel which had taken place between the complainant and the accused one day earlier. The upreme Court was of the view that the assault on the typist had no real nexus or even causal connection or onsequential relation with the performance of his duty as public servant. There was not even a scintilla of vidence from which it could be reasonably inferred that the intent of the assailant was to prevent or deter the typist from discharge of his duty as such public servant. With this observation the charge under Section 332 IPC and the conviction on that count were set aside. Section 332 IPC applies to cases in which hurt is caused oluntarily to deter a public servant from his duty. The typist was working in his office and inspite of that, since the dispute related to the incident of abusing a day earlier, the Supreme Court came to the conclusion that there was no real nexus or connection between the assault and the performance of the duty as a public servant.

10. In the present case, I am definitely of the view that at the time when the occurrence took place Sri. Arya was not performing any duty imposed upon him by law. Undoubtedly he was a public servant but since he was not discharging any duty imposed on him by virtue of his office and was not performing any act connected with the duty attached to his office and forming integral part thereof, hence the case will not be covered by Section 353 of the IPC but will only be covered by Section 352 of the IPC. In this respect I will not agree with the view of the learned Sessions Judge.

11. The result is that from the evidence on the record, a case under Section 352 of the IPC was made out and the revisionist was liable to be punished for the same. But there is another circumstance which intervenes.

12. During examination-in-chief Sri. Srikrishna Arya clearly gave out that on the basis of a letter sent to the District Magistrate, Sri. Naresh Chandra Jauhari was suspended. Thereafter the matter came before Smt. Neena Ranjan who was the District Magistrate. Before her, the revisionist begged for pardon and on that ground his suspension was revoked and he was reinstated. During cross-examination he further gave out that when the matter came up before Smt. Neena Ranjan, he was also called along with one Mr. Jain who was the then Election Officer and some others and in their presence this matter was compromised and after this compromise he had no grievance left against the revisionist. The District Magistrate even told Mr. Jain that the case should be withdrawn.

13. It clearly means that there had been a compromise in this case before the District Magistrate after lodging of the report. The legal position is very clear. An offence under Section 352 of the IPC is compoundable even without the permission of the Court. A composition is an arrangement whereby there is settlement of the differences between the injured party and the person against whom the complaint is made. It is not necessary that the composition should be in writing, it may be oral. If both the parties agree that there has been a compromise, then the Court has to dispose of the case in terms ol that compromise and the is to be acquitted. If on the other hand, parties differ then the Court has to call upon them to lead evidence and then record a finding on such evidence whether the allegations regarding the compromise are true or not.

14. In the present case, there is no dispute as regards the factum of the compromise. This fact has been narrated by the complainant first informant himself in his deposition both in examination-in-chief and also in cross-examination and it is clearly made out that on account of the intervention of the District Magistrate, the matter was compromised. The suspension order against Sri. Naresh Chandra Jauhari was withdrawn and he was reinstated and thereafter the complainant had no grievance left against the revisionist. It has been laid down in the case of Mohammad Mansoor v. Hira Singh AIR 1959 627, that the effect of a compromise is automatic. Wherever the composition of an offence takes place it has instantaneous effect of acquittal of the accused. Therefore, whenever it is contended before the Magistrate that the applicant stood acquitted on account of composition of the offence, it also meant that his trial was barred by Section 403 Code of Criminal Procedure and it was the duty of the Magistrate to decide the matter in this respect.

15. In the case of Mrs. F.M. Torpey v. King Emperor MANU/UP/0037/1927 : AIR 1927 All. 375, the complainant admitted in his cross-examination that there was a compromise to the effect that he should leave on a particular date and no dues will be charged. The lower Court refused to accept the compromise on the ground that the complaint was filed subsequent to the alleged compromise and not prior thereto. The matter came to the High Court and it was held that no provision of the Code of Criminal Procedure lays down that a compromise should be arrived at only after the filing of the complaint. If an offence is compoundable without the permission of the Court, it does not seem necessary that the composition should be arrived at after the complaint has been filed. It was also held that a compromise can be there even prior to the filing of the complaint.

16. An offence is complete when the acts constituting it have been committed, irrespective of whether any complaint or charge has been laid before the Court or not. The allusion to the word "accused" in the section only describes his character at the time of the trial. But it is undoubted that an offence is complete as soon as all acts constituting it have been committed, and it is the compounding of the offence and not of the trial, which is the matter to be considered. Therefore, it is neither necessary for a compromise or composition to be in writing nor that it should be made after the case has been launched or the complaint has been made. In the present case the compromise took place after the lodging of the report and when the proceeding of the case were going on. It will be a valid compounding of an offence under Section 352 IPC which is compoundable without intervention of the Court.

17. The result will be that the accused will have to be acquitted on that charge in view of the compromise arrived at between the parties.

18. In the result the revision is allowed. The charge framed against the accused under Section 353 IPC was not justified and his conviction under Section 353 IPC is set aside. His case was to be covered by Section 352 of the IPC and in view of the campromise that has been arrived at between the complainant first informant and the revisionist, this offence stands compounded and the accused stands acquitted. He need not surrender. His bail bonds shall stand discharged.

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