P (PLP)

S. H. Jafri, for Respondents. Muhammad Hussain, Shah Muhammad, Ghulam Muhammad, Ahmed Din, sons of Allah Wadaya, and Muhammad Sadiq, son of Muhammad Hussain, were put on trial in the Court of Ch. Muhammad Din, Magistrate 1st Class, under sections 324 and 148 Indian Penal Code. The evidence for the prosecution was recorded by the trial Court partly on 10th August and partly on 28th September, 1948. The accused were examined on 29th September and the case was adjourned to 2nd November, 1948, for defence evidence. The accused applied for a further adjournment on that day because their witnesses were not present and the case was postponed to 30th November 1948 when Allah Ditta, son of Shamas Din, the injured person in the case, filed a petition for permission to compromise the case. This petition was opposed by the P. S. I. on the ground that though the offence under section 324 was compoundable, with the per mission of the Court, the offence under section 148 Indian Penal Code was not so compoundable. Reliance was placed by the counsel for the accused on Sh. Basireddi v. Sh. Khayrat Ali. (20 I. C. 618) in support of his contention that if an offence under section 324 Indian Panel Code is permitted to be compromised by the Court there is no offence left under section 148 Indian Penal Code to be dealt with separately; and the whole case can be compromised. This contention was accepted by the trial Court, the compromise was allowed, and the accused were acquitted. From this order of acquittal the Crown has filed an appeal through the Advocate‑General, West Punjab, under section 417, Criminal Procedure Code. The acquittal is impugned as illegal because the accused were charged for offences under sections 148 and 324 read with section 149 Indian Penal Code which are said to be not compoundable and it is prayed that the acquittal be set aside. In the case mentioned above the complaint was for house trespass, causing grievous hurt and being member of an unlawful assembly. The Magistrate in whose Court the complaint was filed summoned the accused only under section 325 Indian Penal Code which is an offence compoundable with the permission of the Court. In the course of hearing, the complainant filed a petition from which it appeared that he intended to compromise the whole matter of complaint. The Magistrate, however, sanctioned the compromise of the offence of voluntarily causing grievous hurt, which was the only offence being tried in his Court. The parties were entitled to compound the offence of house trespass without the permission of the Court. After the acquittal the complainant moved the Court on the allegation that the terms of the compromise had not been carried out and prayed that the case be reopened. This was refused by the trial Court; but the District Magistrate ordered further enquiry into the case. The accused applied for the revision of the District Magistrate's order to the Calcutta High Court where it was held that the petitioners could not be prosecuted any further either for grievous hurt or house‑trespass; and as the object of the unlawful assembly, in the opinion of the High Court, could only have been to commit these two offences which had been compounded, it teas considered that the District Magistrate had not exercised his discretion wisely in directing further enquiry. The order was accordingly set aside. The learned Advocate‑General points out that it was nowhere laid down in this case that an offence under section 148 Indian Penal Code could be compounded and the question was not directly in issue in that case. The allegation of the complainant teas that the terms of the compromise had not been complied with and it was considered that the District Magistrate had not acted wisely in ordering further enquiry on that ground. He had ordered further enquiry into the whole case, including offences which had been legally compounded resulting in the acquittal of the accused. It is asserted by the learned Advocate‑General that the formation of an unlawful assembly is a distinct offence, punishable under section 143 Indian Penal Code and not compoundable. When the unlawful assembly proceeds to use force or violence, in the prosecution of its common object, every member of that assembly is said to be guilty of " rioting," an offence punishable under section 147 Indian Penal Code and not compoundable. Section 148 Indian Penal Code is an aggravated form of rioting which is also not compoundable. Section 149, Indian Penal Code, says that " if an offence is committed by any member of an unlawful assembly, in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." In columns 5 and 6 Schedule 11, Criminal Procedure Code, section 149 Indian Penal Code is stated to be bailable, according as the offence is bailable or not, but not compoundable. It is contended by the Crown that even compoundable offences when committed by all or any of the members of an unlawful assembly, in the prosecution of their common object, become not compoundable by virtue of section 149 Indian Penal Code. In In re Matti Venkanna and others reported in I. L. R. 46 Madras 257 the point raised was whether the conviction under sections 143 and 447 Indian Penal Code was illegal because the offence under section 447 Indian Penal Code had been compounded. A compromise petition was filed in the trial Court by the com plainant and the accused but was rejected on the ground that the offence under section 143 Indian Penal Code was not compoundable. The common object charged against the accused was criminal trespass. It was contended on behalf of the accused that as the offence of trespass was compoundable the compromise had the effect of annulling the common object charged. This contention was not accepted and it was held that the essence of the offence under section 143 Indian Penal Code is the combination of several persons for the purpose of committing an offence; and that consensus of purpose is itself an offence, distinct from the offence which these persons agree and intend to commit. The compounding of an offence does not mean, it was observed, 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 as sufficient compensation for what he has suffered. The law allows the complainant to deal with the offence of criminal trespass but not with the offence of five or more persons combining to effect the criminal trespass. The case reported in 20 I. C. 618, mentioned above, was considered and it was remarked that it did not say that the composition of the offence of house‑trespass and grievous hurt had the effect of compounding the offence of being members of an unlawful assembly with the common object of, committing an offence. It rather implied the contrary. In In re Gurunarayan Das and others (A. I. R. 1948 Pat. 58) it was held that the offences under sections 147 and 148 I. P. C. were not compoundable and no acquittal can be allowed by reason of compromise in respect of these charges. In Agha Nazarali Sultan Muhammad v. Emperor (A. I. R. 1941. Sind 186) it was laid down that an offence under section 143 is not compoundable because it was regarded by the Legislature as concerning persons other than those immediately involved. It affects public peace and the conclusion of such cases is more than a matter for agreement between the individuals involved. The case reported in 20 I. C. 618 was considered in this case also and it was observed that the Magistrate in that case had treated the complaint as one under section 325 Indian Penal Code only. He had not accepted the case of the complainant that there was an offence of unlawful assembly or a rioting. In Emperor v. Jarnally and others (A. I. R. 1925 Lahore 464) the question was whether the offence under section 147 Indian Penal Code would ipso facto fail if permission to compromise the olTence under section 325 Indiar‑ Penal Code is granted. The trial Magistraae had relied upon Sh. Basireddi v. Sh. Khayrat Ali (20 I. C. 618) and had acquitted the accused It was observed by Campbell, J. that if the Magistrate had read section 235 (1) and section 403 (2), Criminal Procedure Code, he would have perceived that an acquittal, under section 345, Criminal Procedure Code of an offence under section 325 Indian Penal Code bar to the subsequent trial of the accused on a charge under section 147 Indian Penal Code. It was further observed that if the circumstances seemed to the Magistrate to require it he could have discharged the accused in respect of the accusation under section 147 Indian Penal Code but he could not have acquitted him of this charge by virtue of any compromise. Mr. Jafri, counsel for the respondents, was given time by us to see if he could think of or find anything on the basis of which he could successfully oppose the appeal. He appeared on the adjourned date of hearing and said that the position taken up by the Crown was correct. In our opinion, the statutory law is clear, and has been further clarified by the cases mentioned above, that an offence under section 148 Indian Penal Code is not compoundable. We, there fore, hold that the order of acquittal in this case is illegal and we hereby set it aside. The learned Advocate‑General prays that the accused may be ordered. under section 423 (a), Criminal Procedure Code, to be retried on the charge under section 148 Indian Penal Code. This prayer is accepted and the District Magistrate Gujrat, ,is directed to take necessary steps for the retrial of the respondents under section 148 Indian Penal Code. K.M.A. Appeal accepted.