JUDGMENT

1. This is an appeal by the Provincial Government against an order according sanction under Section 345(2) of the Cr PC, to the compounding of an offence of cheating. A preliminary point is raised on behalf of the respondent-accused to the effect that no appeal lies. Under Section 417 of the Cr PC, an appeal lies in a case of acquittal by the Provincial Government “from an original or appellate order of acquittal passed by any Court other than a High Court.” Section 345 of the Cr PC, contemplates no actual order of acquittal being made though in fact such orders are frequently passed and were passed in this particular case. But sub-s. (6) states that

“the composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.”

2. The question is whether the words “shall have the effect of an acquittal” empower an appeal under S. 417. The question raised is of first impression and there does not appear to be any decision directly in point. While it is true that no appeal lies unless a right of appeal is expressly conferred by statute, in our opinion this right can be conferred in many ways. One way in which it might have been conferred in this particular case would be to say that whereas an order according sanction to the compounding of an offence under the section does not in itself amount to an order of acquittal it will have that effect, including a right of appeal under S. 417. Those words have not been used but, in our opinion, when the section says it “shall have the effect of an acquittal” it means that it shall have all the effects of an acquittal. One of the effects of an acquittal is that an accused person cannot be tried again for the same offence. Section 403(1) of the Code would apply. In our opinion that section would clearly apply whenever an offence has been compounded under S. 345. If that effect follows, and we have no doubt that it does, then equally the other effect must follow, namely a right of appeal. Therefore, in our opinion, the right of appeal is conferred by sub-s. (6) of S. 345. The force of the words “shall have the effect of an acquittal” is that S. 417 and all the other sections relating to appeal are automatically brought into operation. The learned counsel for the respondent relies on 1940 N.L.J 25, 1 but in our opinion that has no application here. All that it says is that the Magistrate cannot proceed further with the case once he has accorded sanction to the compounding of the offence before him. The learned Judge does not go on to consider the effect of the order nor does he consider whether an appeal would lie. So also in 1 Luck. 2312 the point which is raised here did not arise. The learned Judges of the Lucknow High Court considered that in the case before them, which arose under Section 110 of the Cr PC, no appeal lay. They were undoubtedly right in that because no section says that when an order is made under the preventive sections of the Code it shall have the effect of an acquittal. In view of that the case is not in point. We may remark along with the Lucknow Judges that when no appeal lies a revision would lie and so in this particular case even if we had been of opinion that the appeal was incompetent we would have entertained the matter under the revisional powers of the Code. However, that question does not arise because, in our opinion, the appeal is competent.

3. Turning to the facts, the complainant is a man who was litigating an appeal in the High Court here. The accused is the cause list clerk of this Court. According to the allegation in the challan, the accused induced the complainant to pay him a sum of Rs. 2000 stating that the accused would hand it over to one of the Judges in charge of the complainant's case as a bribe. According to the prosecution, the money was handed over to the accused and therefore the complainant was cheated. There is of course no suggestion that the Judge was in any way concerned or that he knew anything about it. The case was ultimately decided against the complainant and that is how the matter came to light. The matter was taken cognizance of by the police and the prosecution has been instituted by them. It is not a private complaint.

4. Before the case had proceeded far, the accused raised the objection in the trial Court that the proceedings were incompetent because the complainant and himself had already compromised the matter out of Court before the police took cognizance of it. Before that matter could be decided, the complainant came in with an application on the next hearing seeking permission under S. 345 to compound the offence. This permission was granted and the appeal is against the order sanctioning the compounding.

5. The grounds on which the learned Magistrate proceeds are that cheating is compoundable under the S. 345(2) at the instance of the person cheated provided the Court accords sanction. According to him cheating is cheating whoever is cheated and whoever does the cheating. The gravity of the offence can make no difference to the fact that if a private person is cheated the matter is not of public concern. Acting on that basis the learned Magistrate accorded sanction, stating incidentally that as the complainant and the accused are said, according to their statements, to be friends, and as their family are friends, it would be a pity to disturb their friendly relations because of something with which the public at large are not concerned and in which they are not interested. With that we are wholly unable to agree. In our opinion, this is a matter of very grave public concern.

6. We say it is of public concern because of two things. The first and the most important is that the complainant was led to believe that a Judge of this Court—not that would have mattered, it would have been equally grave had the Judge been of any other Court—was amenable to a bribe. Now it is obvious that in a case of this kind the matter does not rest there. In fact one of the allegations in the case of the prosecution is that the complainant had actually to go to others to borrow money for the purpose of bribing the Judge. He would unquestionably have told the persons from whom he borrowed money why he was doing so, especially as, if the prosecution case is true, one of these persons was the complainant's uncle. That uncle in turn would not have kept quiet. He would have talked to others, to his friends and to his relations. All would naturally resent “an exaction” of this kind and resent it keenly, and they would be right in resenting it. Therefore though the person cheated is a private individual, the effects which flow from that cheating become much more widespread than the individual cheating. Others get to hear of it, and not all among these others will hear of the result, namely that the suggestion was not true. Therefore, it is of the gravest public concern, whether the person cheating is an official or not. It would not matter who did the cheating in a case like this. It would still be of grave public concern. Also, it is a matter of accident that in this case the complainant lost his case. Say he had won. Would he not have believed, and would not all his friends and relations have believed that this was due to his bribe? Would they not tell their friends and whisper it around the village that bribes are necessary, or at any rate helpful, to one's cause? Is that not a matter of the gravest further import?

7. The matter is, however, aggravated when we find that the person who is said to have done the cheating is a clerk of the Court. All public servants attached to a Court are trustees and guardians of the honour and integrity of the Court. It is a matter of grave import if any of them attempts to extract an illegal gratification or extort money from those who seek access to the Courts, or endeavours to lead them astray and, by abusing his position, tries to enrich himself. Persons in this class of life are looked upon as persons of influence and of some authority by the ordinary ignorant public. If therefore they abuse the position of confidence in which they are placed by reason of their office, it becomes a matter of great public concern. In our opinion, it is perverse to consider otherwise. If ever there was a case in which composition should have been refused, this is such a case.

8. It was argued on behalf of the respondent that the position which the person who is said to have done the cheating occupies should be ignored. According to the respondent, all persons are alike in the eye of the law and therefore the mere fact that the accused is a Government official ought not to be regarded as enhancing the gravity of the offence or as turning what would otherwise be a private matter into one of public concern. A.I.R 1929 Pat. 5123 was relied on for this argument.

9. It is always difficult to apply a decision dealing mainly with facts to other circumstances because facts are never alike. In our opinion, that decision can be distinguished from this on the facts. The circumstances there were different. In that case the complainant was not a private party but a public body, namely a Co-operative Society, and the Directors of the Society stated that in their opinion it was not in the interests of the Co-operative movement that the prosecution should proceed. The learned Judge there had to weigh one set of public considerations against another. Here there is no such conflict. It must of course be remembered that we are in no way endeavouring to pre-judge this Case on its merits. The allegations have yet to be investigated and naturally we express no opinion as to whether they are true or not. We merely proceed on the assumption that if they are true, then they import matters of grave public interest and consequently require a thorough and complete investigation and trial. The appeal is allowed and the order sanctioning composition is set aside. The trial will now continue.

10. Appeal allowed.