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Judgment
The only question arising for determination in this application for revision is whether the order confirming the compromise arrived at between the parties dated the 11th February 1919 is valid or invalid; and if invalid, whether the same should be set aside.
The petition of complaint filed by the complainant avers facts which tend to show that a theft from the Kutoheri house in village Jamjhari had been committed by the opposite party of certain articles and property belonging to the complainant therein; and that the ingredients necessary to constitute an offence u/s 380 of the Indian Penal Code existed.
The Magistrate failed and omitted to take the necessary steps to examine the complainant as he should have done immediately on the filing of his petition of complaint, having regard to the frame of his petition relative to the matters stated therein. The learned Magistrate, instead of proceeding to examine the complainant as he ought to have done, proceeded to hold a local investigation; and when be went to the scene of occurrence, he found a condition of things existing which showed that the case pat forward by the complainant was not entirely false, and he assigned reasons which we think cogent to show that a crime in the nature of a theft had been committed.
Daring the course of this investigation the opposite party came forward and suggested that a compromise might be effected on a certain basis. The parties on both sides agreed that a compromise should be arrived at between them, as it was more or less a matter of family dispute. But the opposite party represented before us by Mr. Gour Chandra Pal failed to carry out the terms of the compromise. Hence the petitioner seeks now to have the order of the 11th February set aside; and craves permission to proceed with his petition of complaint unfettered by the terms of the order of the 11h February 1919.
The offense charged in the petition of the complainant would appear to constitute an offence u/s 380 of the Indian Penal Code and consequently be a non-compoundable criminal charge, and, therefore, the learned Magistrate ought not to have sanctioned or entertained the compromise entered into between the parties or permitted the same to be filed. As far as I can see, every step taken by the learned Magistrate in the course of the proceedings has been irregular from their inception to their end.
We are quite satisfied that in point of law the order of the 11th February was quite irregular and improper and must be set aside, and we order that the complainant shall be entitled to proceed on his petition of complaint in due course of law as if the order of the 11th February 1919 had never been made.
We have no evidence before us as to the merits of the petitioner''s claim; and we refrain in an application of this character from expressing any opinion as to the merits or demerits of the case of either of the parties to the contemplated pending criminal proceedings.
Accordingly we allow this application.