Gagan Chandra Das vs Abadhut Behera

B.K. Ray, J.—This revision is directed against the judgment of the Additional Sessions Judge, Bhubaneswar confirming the order of conviction and sentence passed against the Petitioner u/s 504, Indian Penal Code and acquitting him of the charge u/s 294, Indian Penal Code.

The prosecution case against the Petitioner may briefly be stated thus: At about noon on 27-11-1972 the opp. party was going on the road after finishing his bath in a pond. While going he found the Petitioner who was the Headmaster of the village L.P. School going to the school. Seeing him the opp. party enquired from the Petitioner as to how he was going to the school so late. The Petitioner did not reply to this, but went to his school. Subsequently, the opp. party was sent for by the Petitioner to the school through a school student. The opp. party accordingly went to the school. Immediately thereafter the Petitioner seeing the opp. party shouted ''Sala, who were you to ask me on the road''. The opp. party protested at this. Thereafter, the Petitioner got enraged, abused the opp. party in filthy language, got up from his chair and exposed his private parts to the opp. party by lifting his (Petitioner) cloth.

On the aforesaid allegations the Petitioner'' was summoned to stand his trial under Sections 294 and 504, Indian Penal Code.

On the very first day of appearance of the accused in Court a compromise petition signed both by the Petitioner as well as the opp. party and their respective advocates was filed before the learned Magistrate. This was on 27-1-1973. The order-sheet in the case of that date reveals that the following order was passed:

Accused person present. Complainant present. Both ''parties file a petition for compromise. Heard. Section 294, Indian Penal Code is not compoundable. Petition is rejected.

Accused to furnish bail of Rs. 300/ - with one surety for the like amount. Complainant to produce witnesses for hearing by 26-3-1973.

After the above order the trial of the Petitioner proceeded before the learned Magistrate for both the offences, viz., under sections. 294 and 504, Indian Penal Code. The Petitioner was convicted and sentenced under both the sections. Against the order of conviction and sentences the Petitioner preferred criminal appeal No. 19/106 of 1975 which was disposed of by the Additional Sessions Judge, Bhubaneswar. The learned Additional Sessions Judge acquitted the Petitioner of the charge u/s 294. Indian Penal Code but maintained the order of conviction and sentence passed against him u/s 504, Indian Penal Code by the trial Court. The Petitioner has, therefore, come to this Court with the present revision.

Mr. B.R. Rao, learned Counsel for the Petitioner argues that the offence u/s 504. Indian Penal Code is compoundable without the permission of the Court. The compromise petition which was filed in the trial Court on 27-1-1973 was in respect of both the offences, viz., for the offence u/s 294 as well as for the offence u/s 504, Indian Penal Code. Since the offence u/s 504" Indian Penal, Code is compoundable without the permission of the Court, the moment a compromise petition was filed the learned Magistrate had no jurisdiction to proceed with the trial so far as the offence u/s 501, Indian Penal Code was concerned. The trial of the Petitioner, therefore, by the learned Magistrate u/s 504, Indian Penal Code was without jurisdiction and a nullity. For this proposition Mr. Rao relies upon a decision reported in Suravi Mukherjee Vs. State and Another, . The case dealt with in that decision was one u/s 354, 379 and 323, Indian Penal Code against three accused persons. A compromise petition was filed by the complainant on 15.4-1964 only signed by the parties which was put up for consideration on 22-4-1964. That petition was rejected by the Magistrate on the ground that the offences u/s 3/9 and 454, Indian Penal Code were not compoundable. The accused being absent on that day the Magistrate issued a warrant of arrest against her as the complainant stated before him that the terms of compromise had not materialised. It was submitted on behalf of the accused that she being under the impression that the matter was compromised thought fit not to appear. This was not accepted by the Magistrate. In these circumstances, it was held that the compromise against the accused was effected from the date of its filing, i. e, 15-4-1964 and the re-opening of the case against her on 22-4-1964 was unwarranted by law. It was also held in that decision that as soon as the offence was compounded by the complainant, that is the person to whom hurt u/s 323. Indian Penal Code was caused it operated as acquittal even if no acquittal order was recorded, because unless the compromise militates against the provision of Section 345(1), Code of Criminal Procedure as to its validity thereunder or if it is invalid in law on the face of it, it becomes effective from the date when it is filed and the accused is acquitted and the Court becomes functus officio. This view also finds support from the decisions reported in Mohammad Mansoor Vs. Hira Singh and Another, , Godfrey Meeus v. Simon Dular AIR 1950 Nag 91 and Bandhu Padhan v. Bamdeb Senapati 32 (1966) C.L.T. 362. No authority has been cited by the learned Counsel for the opp. party contrary to the view expressed above. In such a position, the contention of Mr. Rao must prevail. Mr. Rao then goes on to argue that the appeal carried by the Petitioner against his order of conviction and sentence u/s 504, Indian Penal Code before the learned Addl. Sessions Judge, Bhubaneswar must be deemed to be nonexistence, in view of the fact that the Petitioner must be held to have been acquitted of the offence u/s 504, Indian Penal Code on the date the compromise petition was filed in the trial Court. The Petitioner''s appeal before the Court ''below, so far as the order of the conviction and sentence passed against him u/s 294, Indian Penal Code was concerned, was competent. The learned Add!. Sessions Judge disposed of the appeal on merit and acquitted the Petitioner of the offence u/s 294, Indian Penal Code. This order of acquittal passed in favour of the Petitioner has not been challenged in this Court. Mr. Rao, therefore, contends and that also very rightly that in view of the settled law as indicated above the Petitioner having been acquitted of the offence u/s 504, Indian Penal Code on the date the compromise petition was filed and he being also acquitted in the criminal appeal by the Court below of the offence u/s 294, Indian Penal Code this revision is bound to succeed.

Mr. D.P. Sarangi, learned Counsel for the opp. party however, contends that the Petitioner having subjected himself to the jurisdiction of the learned Magistrate for his trial u/s 504, Indian Penal Code after the compromise petition was rejected, he is not entitled to raise the plea that his trial for the said offence in the trial Court is without jurisdiction. In view of the settled position of law as indicated above, the learned Magistrate having become functus officio after the compromise petition was filed before him so far as the case against the Petitioner u/s 504, Indian Penal Code was concerned, merely because the Petitioner did not raise any objection before the trial Court regarding his trial u/s 504, Indian Penal Code and carried on appeal against the order of conviction and sentence passed against him under the said section in the Court below, the trial and the order of conviction and sentence passed in such a trial which were invalid in law cannot be said to be valid. The entire proceeding regarding the offence u/s 504, Indian Penal Code both in the trial Courts as well as in the lower appellate Court must be held to be misconceived and any order passed in these proceedings must be held to be without jurisdiction.

In the result therefore, this revision is allowed, the Petitioner is acquitted of the offence u/s 504, Indian Penal Code and the orders of the Courts below convicting and sentencing him under the said section are set aside.