K.S Lodha, J.:— The two accused petitioners have filed this revision against the order of the learned Judicial Magistrate No. 1, Jodhpur dated 17-9-84. The revision arises under the following circumstances.
2. On a complaint filed by non-petitioner Yashwant Singh against the present petitioners, the court took cognizance of an offence u/s 448 I.P.C against them, when the matter was pending for framing charges, an application was moved signed Dy both the parties and their learned counsel on 4.4.84 than the matter has been compromised between the parties and the complainant did not want to further prosecute the case.
3. It was further prayed that the accused may be acquitted. 4.4.84 was not the date fixed in the proceedings of this case and, therefore, the learned Magistrate recorded an order on the back of this application to the effect that the parties with their counsel had filed this application, the matter may be put up on the date of bearing along with case file. The next date was 18.5.84 On that day when the case came up before the court, the Presiding Officer had already proceeded on transfer and his successor had not taken over. The case was, therefore adjourned to 5.5.84 On 5.5.84 an application was filed on behalf of the complainant that the compromise had been entered into between the parties on account of the allurement given by the accused persons to the complainant that his milk booth which had been discontinued shall be restored and that a letter for such a restoration had been shown to him. However, that booth had not been restored and, therefore, the complainant was not now willing to get the compromise recorded. The accused-persons filed a reply to this applcation. It was not denied that there was an assurance about the restoration of the milk booth but it was on the condition that the complainant was to deposit the arrears within 15 days whereupon his licence for the milk booth would be restored. It was, however, contended that the complainant failed to deposit the arrears as agreed and, therefore, the booth could not be restored. It was, however, contended that the complainant cannot go back the compromise already arrived at on 4-4-84. The reply also referred to a suit filed by the complainant for restoration of the milk booth and its dismissal. Reference was also made to the fact that the Dairy Corporation has also filed a suit for recovery of the arrears against the complainat which was pending.
4. The matter came up before the learned Magistrate on 17-9-84. After hearing the parties in respect of the application dated 5-9-84, the court found that since the complainant was disputing tee compromise, the compomise cannot be acted upon and, therefore, prosecution should be continued. He refused to verify the compromise. It is against this order that the present revision has been filed.
5. I have heard the learned counsel for the parties.
6. It is contended by the learned counsel for the petitioners that once a compromise had been arrived at between the parties in respect of the offence u/s 448 I.P.C which was compoundable without the permission of the court, the accused must be deemed to have been acquitted u/s 320(8) Cr. P.C and the learned Magistrate was justified in refusing to verfiy the compromise and proceed further with the case.
7. On the other hand, the learned counsel for non-petitioner no. 1 contended that as the compromise had been arrived at on account of allurement, it was not with the free consent of the conplainant and, therefore, it was no compromise at all and the learned Magistrate was, therefore, justified in refusing to verify the same. He further submitted that the learned Magistrate was further justified in making an enquiry on the application dated 5-9-84 to find out whether the compromise had been legally arrived at. In this connection he placed reliance upon (1) Mangilal v. The State (1957 Cr. L.J 158) and (2) Bandu Padnan v. Bamdeb Senapati (1967 A.I.R (Orrisa) 5).
8. I have given my careful consideration to the rival contention.
9. As a matter of fact, the contoversy in this case lies in a very narrow compass. There is no dispute that a compromise had been arrived at and an application had been filed by the both the parties on 4-4-84 apprising the court of the fact that the compromise had been arrived at between the parties and the complainant did not want to prosecute the case. It was also prayed in the application that the accused may be acquitted. Section 320(8) Cr. P.C clearly lays down that the composition of any ofience under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. The question is whether once such an application had been filed by both the parties, the court could further make an enquiry about the correctness of the compromise. In my opinion, in the circumstances of this case this course was not open to the learned Magistrate. As already stated above, the fact of the compromise has not been disputed. All that has been alleged in the application dated 5-9-84 is that the compromise was subject to the restoration of the milk booth to the complainant and that assurance given by accused persons had not been fulfilled. The said assurance having not been fulfilled, the complainant expressed his desire not to get the compromise verified. Now in this application also the fact that a compromise had been arrived at between the parties has not been disputed, that being so there was no further necessity of any enquiry on the part of the learned Magistrate to ascertain whether the assurance given to the complainant had been fulfilled or not. All that required is that the Magistrate must have been satisfied that compromise had been arrived at. The compromise in the present case cannot be said to be illegal or void. The non-fulfillment of assurance given by the accused persons cannot detract from the fact that the compromise had been arrived at. If the complainant thinks that the condition on which the compromise had been arrived at had not been fulfilled, he may take recourse to legal proceedings for the enforcement of the obligation against accused persons on that account. He cannot resile from the compromise already arrived at by him.
10. The two authorities relied upon by the learned counsel for non-petitioner no. I do not at all appear to be relevant in the present case. In Mangilal's case (supra), there were three offences, namely, offences u/ss 323, 504 and 330. The first two offences were compoundable without the permission of the court but not the last, A compromise was arrived at between the parties and the court was of the opinion that even if as the first two offences had been compounded and the accused stood acquitted of those offences by virtue of the provisions of Section 320(8) Cr. P.C the trial for the offence u/s 330 I.P.C would not be hampered. In Bhandu Pabhan's case (supra) the factum of compromise itself was in dispute inasmuch as the accused filed an application that the offence had been compounded. The complainant was present in the court but the learned Magistrate did not enquire from him whether the fact stated by the accused was correct or not and proceeded with the case. Thereupon, the accused filed a revision and it was observed that the learned Magistrate was bound to make an enquiry about the fact of the compromise. Such is not the case here. In these circumstances when the offence had already been compounded and an application to that effect had been moved by both the parties before the court, the court has nothing more to do except to record an order of acquittal of the accused u/s 320(8) Cr. P.C There is no provision for the verification of the compromise as such. All that is required is that the learned Magistrate must be satisfied that a compromise had been arrived at, which fact was not disputed in this case.
11. I, therefore, allow this revision, set aside the order of the learned Judicial Magistrate No. I, Jodhpur dated 17-9-84 and hold that the accused petitioners S.K Kakkar and Anand Mathur stand acquitted of the offence u/s 448 I.P.C
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