ORDER
S.P. Singh, J.
1. The three petitioners, namely, Deonarain Rai, Rajnarain Rai and Bankey Mahto of village Darhia, police station Kalyanpur, district Darbhanga, have come to this Court in revision against the judgment dated 24th March, 1964 passed by an Honorary Magistrate of the first class, at Samastipur, in a case under Sections 147 and 148, Indian Penal Code. Petitioner No. 1, Deonarain Rai, has been held guilty of the offence under Section 148, Indian Penal Code and sentenced to pay a fine of Rs. 50 and in default, to undergo rigorous imprisonment for a period of thirty days. The other two petitioners have been found guilty of the offence under Section 147, Indian Penal Code and each of them has been sentenced to pay a fine of Rs. 25 and in default to undergo rigorous imprisonment for fifteen days.
2. The petitioners along with two others were tried of these offences on the allegation that on 20th July, 1962, all the accused, variously armed, waylaid one Kishori Rai of their village and assaulted him by means of a gupti and lathi and they snatched away a bundle of papers from his custody. On the following day, Kishori Rai filed a petition of complaint in the Court of the Subdivisional Magistrate at Samastipur, after obtaining a medical certificate.
The learned Subdivisional Magistrate, before taking cognizance, got an enquiry made, took cognizance of the case under Sections 323, 324 and 379, Indian Penal Code and transferred the case to a Munsif Magistrate of the first class for disposal. After several dates, however, this case was transferred to the Court of the aforesaid Honorary Magistrate before whom evidence was gone into and charges under Sections 147, 148, 323, 324 and 379, Indian Penal Code, were framed against the accused. During the course of the hearing, however, the offences under Sections 323, 324 and 379 were compounded at the instance of both parties and also with the permission of the Court. But the accused continued to be tried for the offences under Sections 147 and 148, Indian Penal Code, because the offences under these sections were not compoundable. The learned Honorary Magistrate, on a consideration of the evidence, found that accused Deonarain Rai was guilty of the offence under Section 148, Indian Penal Code, and sentenced him to pay a fine of Rs. 50 only. He found the other four accused guilty of the offence under Section 147, Indian Penal Code, and sentenced each one of them to pay a fine of Rs. 25 as mentioned above. Out of the five accused, three of them moved the Sessions Judge in revision and after having failed there, they came to this Court challenging the validity of the order of conviction and sentence passed by the Court below.
3. Mr. Janardan Prasad Singh, appearing on behalf of the petitioners has urged that after the composition of the offences under Sections 323, 324 and 379, Indian Penal Code, the petitioners could not have been convicted of the offences under Sections 148 and 147, Indian Penal Code, by the learned Magistrate inasmuch as the common object of the unlawful assembly was to commit assault but they have been acquitted of the charge of assault on account of the offence having been compounded. In this connection he has also referred to a decision of this Court in the case of Ramphal Gope v. State of Bihar 1964 (2) Cri LJ 111 (Pat.).
This case is not applicable to the facts of the case in hand. Furthermore, the relevant cases of this Court and those of other High Courts were not placed before Naqui Imam, J. In the instant case it has been held by the Court below that the petitioners did form an unlawful assembly and in prosecution of the common object did commit assault on Kishori Rai. By virtue of the composition of the offences under Sections 324 and 323, Indian Penal Code, they could not be held guilty of the charges under these sections but they could be held guilty of the charges under Sections 148 and 147, Indian Penal Code, which were with respect to distinct offences. Composition has the effect of acquittal only in respect of the offences which had been compounded and not with respect to the other offences with which the petitioners had been charged in this case.
Reference in this connection may be made to the case of the Crown v. Muhammad Hussain 51 Cri LJ 1016 : AIR 1950 Lah 121, where, in a similar circumstance, their Lordships held that where the accused are charged for offences under Sections 148 and 324, Penal Code, and the offence under Section 324 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. After reviewing several cases of the different High Courts and relying on a Madras case in re, M. Venkanna 24 Cri LJ 114 : AIR 1923 Mad 592, their Lordships observed that the essence of the offence under Section 143, Penal Code, is the combination of several persons for the purpose of committing an offence, and that consensus of purpose is itself an offence, distinct from the offence which those persons agree and intend to commit. The compounding of an offence does not mean, that the offence has not been committed, but that it has been committed, though the victim is willing either to forgive it or to accept some form a solatium as sufficient compensation for what he has suffered.
4. A Division Bench consisting of Meredith and Bennett JJ. of this High Court has held in the case of Gurunarayan Das v. Emperor AIR 1948 Pat 58, that the offences under Sections 147 and 148, Penal Code, are not compoundable at all, and therefore, no acquittal can be allowed by reason of the compromise in regard to the offences under Sections 323, 324 and 325, Indian Penal Code. Similar view was expressed in a case of the Rajasthan High Court in the case of Mangi Lal v. State 1957 Cri LJ 158 (Raj.). In that case it was held that although offences under Sees. 323 and 504 were compoundable without the permission of the Magistrate, the offence under Section 330 was not compoundable at all. Therefore, even if the story of compromise was taken for granted it would not affect the trial of the accused under Section 330. In a case of the Bombay High Court, State v. Kamalakar Prabhakar Juvekar AIR 1960 Bom 269, their Lordships held that the offence under Section 279, Indian Penal Code, is non-compoundable 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. The composition of the offence under Section 337, Indian Penal Code, sanctioned by the Magistrate, therefore, does not result in the acquittal of the accused for the offence under Section 279, Indian Penal Code.
5. From a perusal of these decisions it would appear that the composition of one offence will not bar a prosecution for a distinct offence of which the accused might have been charged on the same facts. Moreover, a composition has the effect of acquittal only in respect of the offence which has been compounded and not of the other offences of which the accused is charged in a case and only as between the person who is entitled to compound and the accused with whom the composition takes place. In the present case, as has been shown above, the offences under Sections 147 and 148 are distinct from the offences under Sections 323 and 324 Indian Penal Code. As has been found by the Court below in this case, all the three petitioners along with others constituted members of an unlawful assembly the common object of which was to use force and in prosecution of that common object, they did use force inasmuch as they assaulted the complainant. Even though they have been acquitted of the charges under Sections 323 and 324, Indian Penal Code, for the commission of assault on the complainant by reason of the composition of these offences, the fact remains that they were members of art unlawful assembly the common object of which was to use force and with that end in view they were there and the charge had been proved against them. Their convictions and sentences under Sections 147 and 148, Indian Penal Code, must, therefore, be upheld. The application is, accordingly, dismissed.