R. Chandra, J.
1. This is an appeal by the State, under Sections 417 and 423 of the Criminal P.C., against the acquittal of the respondents, on the charge under Section 147, Penal Code. On 8.11.1963, Mahabir Singh lodged the first in. formation report under Section 323 lead with Section 323 of the Penal Code. The police after due investigation submitted the charge sheet against the respondents for the offences under Sections 147, 323 and 506, Penal Code. The Magistrate who tried the case, framed the charges only under Sections 147 and 323 read with Section 149, Penal Code. No evidence was recorded in the case. The parties filed a compromise, and the Magistrate under his order dated 5th February, 1985, acquitted the accused of both the charges with the following observations:.The offence under Section 323, Penal Code is compoundable without permission and presents no difficulty.
Regarding the offence under Section 147, Penal Code which is not compoundable parties have been heard at length and it has been argued by the learned defence counsel that in spite of the fact that the offence under Section 147, Penal Code is non-compoundable as the common object of the assembly was to assault Mahabir Singh and that object by virtue of the compounding of the offence under Section 323, Penal Code no more remains an object within the meaning of Section 141, Penal Code which defines unlawful assembly and as the offence under Section 147, Penal Code fails the accused are entitled to acquittal..The Patna authority has therefore to be accepted and as because of the compounding of the offence under Section 323, Penal Code, the charge under Section 147, Penal Code also fails, it will be a waste of time to proceed with the trial and examine witnesses as the very object of the assembly is not a 'common object' within the meaning of Section 141, Penal Code now and there remains nothing to be tried as regards the accused are concerned. There being no offence in existence in the eye of law the trial cannot proceed in spite of the provisions of Section 251A(7). Criminal P.C.
The present appeal is directed against that order. Its validity was attacked on the ground that only the offence under Section 323, Penal Code, was compoundable, and the Court below erred in acquitting the accused for the offence under Section 147, Penal Code, which was non-compoundable.
(2) This appeal came up for hearing before Nigam, J. On behalf of the respondents reliance was placed on a single Judge decision of this Court, in Ramesh Chandra v. State 1966 All WR (HC) 606, where the learned Judge stated:.Sections 147 and 148, Penal Code simpliciter are, however, not compoundable, but as they are tasked on in the present case to Sections 324 and 325, Penal Code under which the accused person's acquittal has been ordered, their conviction under Sections 147 and 143, Penal Code which had for its common object the committing of the assault on the complainant, cannot be sustained and their acquittal thereunder, has also to be ordered.
Brother Nigam did hot agree with that view, and directed that the matter be laid before a Division Bench. So, this appeal has come up for hearing before this Bench. We have heard the learned Counsel for the parties.
3. We may say at the outset that with respect we also do not agree with the view taken by Takru, J., in 1966 All WR (HC) 606 (supra). Section 345(1), Criminal P.C. prescribes that the offences thereunder specified may be compounded by the persons mentioned in the third column of the appended table. By Sub-section (2) provision is made for the compounding of the offences specified in the first column of the table appended to this sub-section by certain persons with the permission of the Court, before which any prosecution for the offence is pending.
Sub-section (6) further lays down:
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.It is therefore clear that to have the effect of an acquittal the offence compounded must be one specified either under Sub-section (1) or Sub-section (2). It is not disputed that the offence under Section 147, Indian Penal Code, is not compoundable under either of the two sub-sections. A composition is an arrangement or settlement of differences between the injured party and the person against whom the complaint is made. An incomplete or illegal arrangement will not amount to an actual acquittal within the meaning of the law. It is against public policy to compound a non compoundable offence. The Legislature has laid down the test for determining the classes of offences which concern individuals only as distinct from those which have reference to the interest of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is the duty of a criminal Court to refuse the composition or withdrawal of the prosecution, if the case is non-compoundable. The question of a case being compoundable or not must be decided with reference to the state of facts existing at the date of the application to compound. It is not possible for the Court to see what the ultimate result of the case will be.
4. In the instant case, we are primarily concerned with the offence under Section 147, Indian Penal Code. The other offence, namely, under Section 323 Indian Penal Code was compoundable under law, and the Magistrate was justified in accepting the compromise, and acquitting the accused of that charge. It could not be doubted that both the offences, are quite distinct and separate. Section 323, Indian Penal Code reads:
Whoever...voluntarily causes hurt....
'Voluntarily causing hurt' has been defined under Section 321, Indian Penal Code. It reads:
Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that be is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said 'voluntarily to cause hurt'.Similarly, Section 147, Indian Penal Code, reads:
Whoever is guilty of rioting, shall be punished with imprisonment of either description
for a term which may extend to....
'Rioting' has been defined under Section 146 of the Coda. It reads:
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.The term 'unlawful assembly' has been defined under Section 141, Indian Penal Code. The relevant portion may be reproduced below:
An assembly of five or more persons is designated an 'unlawful assembly' if the common object of the persons composing that assembly is...or
Third.-To commit any mischief or criminal trespass, or other offence, or....
'Force' has been denned under Section 349, Indian Penal Code. It reads:
A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion! or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling Provided that the person causing the motion, or change of motion, or cessation of motion causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described:
First.-By his own bodily power.
Secondly - By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further at on his part, or on the part of any other person.
Thirdly - By inducing any animal to move, to change its motion, or to cease to move.
It is not necessary that the force or violence should be directed against any particular person or object. The use of any force even though it be of the slightest possible character by any one of an assembly once established as unlawful constitutes rioting. As soon as force or violence is used the offence of rioting is complete. If the blow has resulted in hurt then the further offence under Section 323 would also have been committed. So, the view that if the offence under Section 323, Indian Penal Code, is tacked with Section 117, Indian Penal Code, and the case under Section 323, Indian Penal Code, is allowed to be compounded the other charge would automatically fail, does not appear to be correct. The mere use of force or violence would constitute the offence of rioting. If hurt is caused due to that force or violence, it would amount to a separate offence, namely, under Section 323, Indian Penal Code. The charge under Section 147, Indian Penal Code, could not be allowed to be compounded with the offence under Section 323, Indian Penal Code.
Similar view was expressed, in The Crown v. Muhammad Hussain ALR 1950 Lah 121.
An offence under Section 148, Penal Code, is not compoundable. Where the accused are charged for offences under Sections 143 and 324, Penal Code, and the offence under Section 124 is compounded, no acquittal can be allowed by reason of the compromise in respect of the charge under Section 148. The compromise constitutes no bar to the subsequent trial of the accused under Section 148.
5. In another case, Emperor v. Ranchhod Bawla (1913) 14 Cri.L.J 77 (Bom.), which was also reported in ILR 37 Bom at p. 369, it was held:
In a warrant case in respect of a non-compoundable offence, it is not competent to a Magistrate to enter an order of acquittal on a private complainant's offering to withdraw from the prosecution.
In another case. State v. Kamalakar Prabhakar Juvekar AIR 1960 Bom 269, the Hon'ble Judges observed:
The offences under Sections 279 and 337. Indian Penal Code, are, however, offences of different nature and the conduct referred to therein is penalized with different objects. An act, whish is rash or negligent or is likely to endanger human life, may be the result of driving any vehicle or riding on a public way. There is no doubt that the two sections overlap but that does not, in our judgment, make those offences of the same character. The offence under Section 279, Indian Penal Code, is non-compound, able and the compounding of the offence under Section 337, Indian Penal Code, will not prevent the prosecution from being continued under Section 279, Indian Penal Code. When com. pounding of an offence under Section 337, Indian Penal Code, is permitted, the Court permits the aggrieved party to accept private satisfaction for the injury caused to him, but thereby the Court is not seeking to permit composition of an act, which is dangerous to the public. The composition of the offence under Section 337, Indian Penal Code, sanctioned by the learned Magistrate therefore did not result in the acquittal of the accused for the offence under Section 279, Indian Penal Code.
In Biswabahan Das v. Gopen Chandra Hazarika : 1967CriLJ828 , their Lardships observed:.If a person is charged with an offence, then unless there is some provision for composition of it the law must take its course and the charge enquired into resulting either in conviction or acquittal. If composition of an offence was permissible under the law, the effect of such composition would depend on what the law provided for. If the effect of composition is to amount to an acquittal then it may be said that no stigma should attach to the character of the person, but unless that is expressly provided for, the mere rendering of compensation would not amount to the vindication of the character of the person charged with the offence.
So, for the reasons already given, we are of the opinion that the offence under Section 147, Indian Penal Code, was not compoundable, and the Magistrate clearly erred in allowing composition of that charge, and acquitting the respondents.
6. As already stated earlier, the respondents were also charged under Section 323 read with Section 149, Indian Penal Code, Section 149 does not create a new offence but makes a member or of unlawful assembly vicariously liable for offences committed by others in furtherance of the common object. No separate sentence has been prescribed under that section. This section falls under Chapter VIII, of the Indian Penal Code, relating to 'offences against public tranquility', and is not compoundable. (See tabular statement of offences mentioned in Schedule II, appended to the Code of Criminal Procedure.) The charge under Section 323, Indian Penal Code, is compoundable, and the Magistrate has rightly accepted the compromise filed by the complainant and the respondents, and acquitted the latter of that offence. In the circumstance?, fresh trial on the charge under Section 149, Indian Penal Code, would be unnecessary.
7. Accordingly, the appeal is allowed, acquittal of the respondents under Section 147, Indian Penal Code, is set aside and the case is remanded for their retrial, for the offence under Section 147, Indian Penal Code, according to law. The District Magistrate, Unnao, shall try this case himself or transfer it to some other competent Magistrate.