Nehal Ahmad Khan vs Emperor

Macpherson, J.—This is an application by the accused against an order of the Sub-Divisional Magisirate of Basaram refusing to grant permission to the complainant and the accused in a criminal case pending before him u/s 417 of the Indian Penal Code, to compound the same.

On the 17th February the complainant, a former tahsildar under the sajjauanashin of the Sasaram khanlcah, lodged a complaint before the Sub-Divisional Magistrate against the petitioner who is a Circle Officer under the sajjadanashin setting out that the petitioner had cheated him of sums of Ra. 375 and Rs. 1,200 which he had obtained on hand-notes by stating that the money was wanted for the sajjadanashin who had directed him to execute the hand-notes; that in the hand-notes he stated that he took the first sum. for the necessity of the khankahand the second sum for the sajjadanashin; that the sajjadanashin denied either having receivedahe money or having asked the petitioner to borrow it on his behalf; that the petitioner on demand refused to re-pay the money to the lender and that the lender would never have lent the money to the petitioner who is in debt, except on the assurance that the sajjadanashin wanted it.

The Magistrate issued process u/s 417 for the 3rd March and when three witnesses including the sajjadanashin did not appear, he issued warrants for their arrest. On the 16th March a petition of compromise was filed between the complainant and the accused on which the Magistrate ordered as follows: "As the offence relates to a public trust I do not see any justification for permitting a compromise. The case will, therefore, proceed," and he re-issued warrants, against the witnesses who had not appeared one of whom was the sajjadanashin:

The only question is whether the Magistrate exercised sound judicial discretion in '' refusing to let the case be compromised.. His ground is that the khankah is a public trust. But it does not appear that the funds of the khankah are or ever were in jeopardy. The pretence of the petitioner was that the money was required for the khankah or for the sajjadanashin, but the hand-notes which he executed seem to make the petitioner himself personally liable. The affairs of the khankah appear to be in some confusion and the position as between the petitioner and the khankah or the sajjadanashin in respect of these loaris generally is involved in considerable of scurity. Such matters cannot suitably be unravelled in a criminal case of this kind/ especially where the evidence of the sajjadanashin, who appears from the order-sheet to have been already involved in some trouble as a witness, is necessary for a conviction. Having regard to these considerations and to the fact that the compromise was arrived at an early stage before the evidence was gone into, I am of opinion that the Magistrate would have exercised a wise discretion in assenting to the�compromise. Accordingly his order of the 16th March refusing ,to permit the compromise is vacated and this Court u/s 345(2) permits the offence to be compounded and acquits the accused. The Rule is made absolute.