Akshoy Singh And Anr. v. Rameswar Bagdi Opposite Party.

This reference, under sec. 438, Criminal Procedure Code, raises an important question of law which has led to some diversity of judicial opinion.

The Petitioners, Akshoy Singh and Akhil Singh, were prosecuted on the complaint of one Rameswar Bagdi before the Deputy Magistrate of Burdwan for offences under secs. 447 and 504, Indian Penal Code. They were convicted only under the former section and were sentenced to pay a fine of Rs. 10 each, in default to suffer rigorous imprisonment for two weeks. There, was also an order under sec. 545, Criminal Procedure Code, that Rs. 5 out of the fine, if realised, be paid to the complainant as compensation. This sentence which was passed on the 30th March 1915 was non-appealable. On the 14th April the Petitioners moved the Sessions Judge to call for the record and to recommend to this Court that the conviction be set aside on the ground amongst others that the case was one of civil dispute and not of criminal trespass. The Sessions Judge called for the record and fixed the 12th May for hearing. On that date, the complainant filed a petition to the effect that the matter in dispute between the parties had been settled by the intervention of the gentlemen of the locality, that as the case was compoundable it had been compromised and that his prayer was for leave to withdraw the case. The Sessions Judge reserved his order, and subsequently made this reference with the recommendation that permission may be given to the parties to compound the case. The question thus arises, whether when an accused has been convicted of a compoundable offence, it is competent to the High Court in the exercise of its powers of revision under sec. 439(1), Criminal Procedure Code, to grant leave to the parties to compound the offence.

Sec. 345, Criminal Procedure Code, treats of the compounding of offences and consists of seven clauses. The first clause specifies the offences which may be compounded and mentions the persons who may compound. The second clause specifies certain other offences which may be compounded only with the permission of the Court before which any prosecution for such an offence is pending. The third clause makes compoundable the abetment of or the attempt to commit a compoundable offence. The fourth clause provides that in the case of a person under disability another person competent to contract on his behalf may compound. The fifth clause defines the stage of the proceeding when an offence may be compounded and is in the following terms: “When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or as the case may be, before which the appeal is to be heard.” The sixth clause lays down that the composition of an offence under the section shall have the effect of an acquittal of the accused. The seventh clause finally provides that no offence shall be compounded except as provided by the section. This analysis of sec. 345 shows clearly that it deals exhaustively with the subject of the composition of offences; with regard to this matter, it defines the persons who may compound, the nature of the offences compoundable, the stage when composition may be made, and the condition under which composition may be effected in the case of some of the offences. The inference is legitimate that when the Legislature provided in cl. 7 that no offence shall be compounded except as provided by the section, the intention was that each of the requirements just mentioned must be fulfilled. Now the fifth clause allows a composition with the leave of the Court when an accused has been committed for trial, or, when, after conviction, an appeal by him is still pending. There is no reference to a case where after conviction (whether by the first Court or by the Appellate Court where an appeal is allowed by law) an application for revision is pending before the High Court. It cannot be contended for a moment that the criminal revisional jurisdiction is included in the criminal Appellate jurisdiction. It is remarkable that although the Letters Patent divides the civil jurisdiction into original and appellate, thus indicating that the civil revisional jurisdiction is in reality an aspect of the civil appellate jurisdictions [Secretary of State v. British Indian Steam Navigation Co.(1)], cls. 22, 27 and 28 of the Letters Patent clearly differentiate between the original, the appellate and the revisional jurisdiction in criminal cases. The Code of Criminal Procedure also plainly distinguishes between appeals and revision, which form the subject of separate chapters (Chapters 31 and 32). By no stretch of language can we consequently hold that cl. 5 of sec. 343 authorises a composition, not merely during the pendency of an appeal, but also during the pendency of an application for revision. We must accordingly answer in the negative the question formulated above. The view we take is in accord with that adopted by this Court in Adhar Chandra v. Subodh Chandra(2) and by the Madras High Court in Sankar Bangayya v. Sankar Ramayya(3). The Allahabad High Court, however, is clearly not of one mind upon this point. The question arose in Emperor v. Ram Piyari*(4). Richards, J., who heard the case in the first instance, thought it very doubtful whether the High Court, in exercise of its powers of revision, had any jurisdiction to allow a composition, and directed a reference to a Bench of two Judges for determination of the question. Knox and Keramat Husain, JJ., were satisfied that the High Court had the power and based their view on Abadi Begum v. Ali Husen(5), a case under sec. 517 and by no means analogous. No reference was made to the terms of sec. 345; but reliance was placed upon sec. 423, cl. (d) read with sec. 439. The question arose again in Naqi Ahmad v. King-Emperor(6), where Tudball, J., doubted the correctness of the decision in Emperor v. Ram Pyari, as inconsistent with sec. 345(5); but as a single Judge he felt bound to abide by that ruling. The question came up for consideration again in Emperor v. Ram Chandra(7), where Knox, J., held, without reference to his previous decision to the contrary effect in Emperor v. Ram Pyari, that a Court of revision cannot allow the composition of an offence which had already resulted in a conviction before the proposed settlement. In the Chief Court of the Punjab, the question was considered in Nidhan Singh v. King-Emperor(8). Chatterjee, J., doubted the correctness of the view that a composition could be sanctioned by a Court of revision, but felt bound to follow two unreported precedents to the contrary. The matter has formed the subject of discussion in two recent cases before the Court of the Judicial Commissioner of Oudh, Ram Swarup v. Emperor(9) and Lalla v. Emperor(10) where the decision in Emperor v. Ram Pyari was followed, without examination of the terms of sec. 345. It is thus plain that the view that a Court of revision is competent to grant leave for composition of an offence which has already resulted in a conviction has been followed either with doubt or reluctance, and always without consideration of the true effect of the provisions of sec. 345. The supporters of this view have, on the other hand, invoked the aid of sec. 423, cl. (d), which authorises a Court of Appeal to make any amendment or any consequential or incidental order that may be just or proper; but this is clearly of no real assistance. An order for composition can in no sense be said to be a consequential or incidental order. There are further two weighty considerations against the applicability of sec. 423, cl. (d). In the first place, it is an elementary rule for the construction of statutes that when a special provision, obviously exhaustive in its scope, has been made for a special topic, as in sec. 345, the scope thereof cannot be indirectly enlarged by reference to a general provision, such as that contained in sec. 423, cl. (d). In the second place, cl. 5 was introduced into the Code for the first time in 1898 to meet the effect of the decision in Empress v. Thompson(11), and cl. (d) was also introduced into sec. 423 at the same time; if the Legislature had intended that composition of offences should be allowed during the pendency of an application for revision, sec. 345, cl. (5) might have been suitably framed; it is inconceivable that compositions during appeals should have, been expressly mentioned and compositions in revision should have been left to be inferred from sec. 423, cl. (d). The position then is that sec. 439 empowers a Court of revision—not to exercise all the powers of an Appellate Court, as is sometimes loosely expressed, but only such powers as are conferred on a Court of Appeal by secs. 195, 423, 426, 427 and 428, that the power to sanction composition of an offence is conferred on a Court of Appeal, not by sec. 423, cl. (d), or any of the other sections just mentioned but by sec. 345, cl. (5), and, that, consequently, sec. 439 which defines the powers of the Court of revision does not confer on it the power to sanction the composition of offences. We hold accordingly that this Court, in the exercise of its revisional jurisdiction under sec. 439, is not competent to grant leave to compound an offence under sec. 345, when such composition has been entered into after the conviction of the aceused. We are, therefore, unable to accept the recommendation of the Sessions Judge and to grant leave to the parties to compound the case.

In the view we take, it becomes necessary to consider the propriety of the conviction which, as already stated, is assailed on the ground that the case is really one of civil dispute and not of criminal trespass. The allegation of the complainant was that the accused had put up a fence on his land and blocked his way out and that they had done so with a view to insult and annoy him. The case for the accused was that the fence had been erected on their own land. The accused were accordingly charged under secs. 447 and 504, I.P.C The Magistrate held that the evidence was not sufficient to justify a conviction under sec. 504, I.P.C He then proceeded to consider the charge under sec. 447, I.P.C Upon the evidence, oral and documentary, he came to the conclusion that the fence had been erected on the land of the complainant and that the accused had thereby encroached on his land. He held accordingly that the accused were guilty of criminal trespass. This view cannot be supported. To sustain a conviction under sec. 447, it is necessary to prove, as required by sec. 441, not only that the accused entered upon the property in the possession of the complainant, but that they did so with intent to commit an offence or to intimidate, insult, or annoy any person in possession of such property. No such intent has been proved in this case; the intent which was imputed and was made the foundation of a charge under sec. 504 has not been established. It is well settled that if a person enters on land in the possession of another in the exercise of a bonâ fide claim of right without intention to intimidate, insult, or annoy the person in possession or to commit an offence, then, although he may have no right to the land, he cannot be convicted of criminal trespass, Empress Of India v. Budh Singh(12), Re: Shistidhur(13) and Jura Khan v. King-Emperor(14). The case before us is clearly one of civil dispute and the Magistrate has not found the elements essential to sustain a conviction under sec. 447, I.P.C The result is that we set aside the convictions and sentences and direct that the fines, if paid, be refunded.

S.C.M

Conviction set aside.