Full Judgment
Shyamsundar, J.
1. The State has notified the respondents in this appeal arising from an order of acquittal passed by the J.M.F.C., Davangere in C.C. No. 4878 of 1988 on 19-9-1990, of its intention to challenge the acquittal of the said accused. The learned Magistrate had allowed the accused before him who were six in number to enter into a compromise with the complainant in the case at whose behest the Police of Jagalur had occasion to investigate into complaint filed by him pursuant to which a charge-sheet listing indeed the commission of large number of offences by these accused punishable under Sections 143, 147, 341, 323, 354, 355, 448, 504, 506 r/w 149, IPC and S. 7(3) of the Protection of Civil Rights Act, had been filed. But before trial could commence the accused were permitted by the Court to compound all the offences allegedly committed by them and in consequence they stood absolved of all the charges. The State has challenged their acquittal as aforesaid.
2. Amongst other things, it is pointed out the offence S. 7(3) of the P.C.R. Act was not compoundable at all because the Protection of Civil Rights Act did not permit composition of any offences cited under Section 7 thereof. Besides it is urged the provision under Section 320 of the Cr.P.C. which permits composition of certain offences enumerated under the schedule thereto with or without the permission Court would not in any event enable the accused to have compounded the offence under Section 7(3) of the P.C.R. Act, since that was not one of the offences enumerated in the schedule to Section 320, Cr.P.C. as compoundable voluntarily or with the permission of the Court. We notice from the catena of charges levelled against the accused, some of the other offences complained of namely offences enumerated under Sections 143, 147 and 149 are also not compoundable under Section 320, Cr.P.C. even with the permission of the Court much less without such permission.
3. All the accused were notified regards admission and are represented in this Court by counsel. Their learned counsel maintain in that behalf that offences under Sections 143, 147 and 149 could be compoundable with the permission of the Court. He says some Courts have taken the aforesaid view. We do not wish go into that controversy and suffice it to notice that in any event the offence made punishable under Section 7(3) of the Civil Rights Act is per se not compoundable even with the permission of the Court for the simple reason neither the Protection of Civil Rights Act nor Section 320 of the Cr.P.C. makes the offence under Section 7(3)(d) of the aforesaid Act compoundable either with or without the permission of the Court. In the circumstances, the permission granted to the accused to compound even the offence under Section 7(3)(d) of the Act is without jurisdiction and clearly without competence. Learned Magistrate who was not obvious to this difficulty, however, took assistance from a decision of the Madras High Court in Dhanraj v. State 1986 Cri LJ 284. In that case a learned single Judge of the Madras High Court appears to have taken the view that parties prescribed under Section 7 of the Protection of Civil Rights Act could be permitted to compound the said offence voluntarily. The headnote to the decision sets out the dicta that :
'When the affected parties under Protection of Civil Rights Act themselves come before the Court and are prepared to compound the offence, there is no reason why the Court should not accept the same, since the Act itself will be better implemented if compounding of such offences is permitted.'
It would appear in that case also a doubt was raised as to the propriety of permitting the parties to compound an offence under the Protection of Civil Rights Act. The learned Judge dealt with the aforesaid controversy as could be seen from paragraph 4 of the judgment. We noticed from the judgment that it was at the High Court level permission had been sought to compound the offence and in that context the controversy as to whether offences under the Protection of Civil Rights could be compounded at all, was raised, his Lordship thought it was open to him to make an exception since that would give a quietus to the fued between the concerned parties. That his Lordship was more persuaded by the particular facts of the case before him to pass such an order becomes clear, if we read the excerpt at paragraph 4 of the judgment (at page 285).
'A doubt was raised that the offence under the protection of Civil Rights Act is not strictly a compoundable one. I have carefully considered this contention and heard the learned counsel for the appellant as well as the learned Public Prosecutor. It is clear that the Protection of Civil Rights Act, 1955 is a special Act and Section 16 of the same lays down that it overrides other laws. Now, the question is whether the conviction could be compounded in law. Having regard to the peculiar facts of this case and the circumstances set out supra, I am of the opinion that this is a fit case for this Court to interfere and record the settlement arrived at between the parties. My reasons are as follows :- The preamble to the Protection of Civil Rights Act reads that the Act was intended to punish the preaching of the practice of Untouchability, and for the enforcement of any liability arising therefrom. When the parties themselves have voluntarily and willingly come forward to settle their differences, I do not think there can be any legal impediment in permitting the same since, it is not contrary to the spirit of the Act. When the affected parties under the protection of Civil Rights Act themselves come before this Court and are prepared to compound the offence, there is no reason why this Court should not accept the same, since, in my opinion the Act itself will be better implemented if compounding of such offences is permitted. I have also taken into consideration the further fact that both the parties involved, namely, Krishnaveni and Indirani, are Staff Nurses employed in the Government Hospital, holding responsible posts, and both of them agree that further proceedings against each other may be dropped. The alleged acts constituting the offence took palace in August, 1980 and it would appear that both parties have forgotten the incident totally as is clear form the endorsement made by the parties in person before this Court. In these circumstances it will be but just and expedient to uphold the compromise and record the same. For all these reasons, I am of the opinion that this is a fit case for interference by the High Court. Accordingly, the conviction of Dhanraj the appellant in Cr. Ap. No. 112 of 1982 under S. 332, I.P.C. is set aside, and the fine, if already paid will be refunded to the appellant in C.A. 112 of 1982, Cr. Ap. 112/ of 1982 is allowed. Similarly Cr.M.P. 2185 of 1981 is also allowed and the prosecution in C.A. 261 of 1980 stands quashed.'
The excerpted portion of his Lordship's judgment as above makes it very clear that the learned Judge was making an exception to an otherwise impracticable rule in accepting the compromise petition in a matter arising under the provisions of Civil Rights Act and therefore we are not quite sure whether the court in that case intended to lay down at all any principle of universal application covering all cases arising under the Protection of Civil Rights Act.
4. Strictly speaking we think once the State enters the arena and prosecutes a person for an alleged contravention of the provisions of the protection of Civil Rights Act. we do not, therefore, think that thereafter individuals who might have been responsible for initiating action by the police could, without reference to the State which indeed is the de jure, possibly ask the Court to free the accused of the charges levelled against him without reference to the State and without its consent or concurrence. This is an aspect which appears to have been lost sight of in the decision referred to supra.
5. Be that as it may, with respect to his Lordship, we cannot bring ourselves to agree with the view that granting permission to compound an offence under the Protection of Civil Rights Act would advance the object of the Act. Whatever that may be, there is no gainsay in denying that the Act amongst other things is a penal statute enacted for the purpose of ensuring that people do not suffer humiliation or prosecution in society merely by reason of their caste or ethnic origin. Therefore if an offence as enjoined under the Act has been committed, it is a matter of grave doubt, if the process of law can be short circuited by accepting a private agreement between parties without reference to the prosecutor namely the State.
6. It is well to remember that more often than not those who had suffered any indignity, suffered humiliation and physical punishment at the hands of those who claim superiority of birth and very often are persuaded to accept a truce imposed either by further threats or intimidation or at times being lured with the offer of a measly sum in exchange for their silence. With such possibility very much abounding and when the law itself did not permit the suggested course of demitting a cause of action that had already fructified into a proceedings before the Criminal Court, it seems to us it would be hazardous to act upon a plea for compounding an offence under the Protection of Civil Rights Act without being satisfied that the proposed move for burying the hatchet was indeed genuine, an aspect on which the Court cannot possibly be cent percent sure and no one can say that soon after going out of the Court without even an hair being signed, the accused will not again indulge in other atrocities to service penal with a weakened opposition. Therefore, it seems to us, it is far safer to carry the proceedings through in these matters ending with interposing of this Courts verdict. Therefore compounding of an offence resulting in the dismissal of a complaint which more often turns out to be quietus unwillingly suffered.
7. At any rate we think that any compounding done without reference to the State is clearly impermissible. More than all, it should be pointed out that when at law there is no room to adopt a particular course of action it seems to us in that event the Court notwithstanding all its good intention cannot subscribe to or be party to the passing of an order which in law does not countenance or does not permit. For these reasons we must express our respectful dissent from the decision in Dhanraj v. State 1986 Cri LJ 284. We are also to mention that the offence of rioting punishable under Sections 143, 147 and 149, I.P.C. are offences against law and order and public tranquillity. That is the reason why a Court does not permit the composition of these offences. Indeed we think, it would be a travesty of justice if an apology or a (contrivable) regret is put forth by those who are accused of such offences, very often, with a view to earn a reprieve is accepted by this Court, experience shows that once the accused are out of the Court's brooding eye they would have committed similar offences with impunity forgetting the recent ordeal of appearing before the Court and being in a state of expectancy of an indictment from the Court.
8. For these reasons we are constrained to set aside the impugned order of the learned Magistrate referred to supra permitting the accused to compound the offences with which they stood charged in consequence and in lieu of the same we make an order allowing this appeal and direct to remit C.C. No. 4878/88 back to the learned Magistrate for disposal on its merits. On sent the case in the Court below which stands not revived shall be called for hearing on 16-4-1991. On that day the respondents herein will report to the Court for further instructions in the matter.
9. Appeal allowed.