1. The Criminal Revision Application No.440 of 2011 is filed by the applicants – original accused, who are convicted by the learned Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.1692 of 2008 by order dated 30.7.2011 passed below Ex.54, wherein application of the applicants is rejected with the finding that since the complaint was filed in 2008 and the amendment under Section 320 Subsection (2) of he Indian Penal Code came to be amended in 2009, therefore such amendment would not apply and accordingly permission to compromise the case was rejected.
2. The Criminal Revision Application No.441 of 2011 is filed by the applicant – original accused, who is convicted by the learned Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.1824 of 2009 by order dated 30.7.2011 passed below Ex.37, wherein application seeking permission for compounding of offence under Section 320 of the Indian Penal Code is rejected.
3. The Criminal Revision Application No.442 of 2011 is filed by the applicant – original accused, who is convicted by the learned Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.636 of 2010 by order dated 30.7.2011 passed below Ex.25, wherein application seeking permission for compounding of offence under Section 320 of the Indian Penal Code is rejected.
4. The original accused, who have filed purshis before the learned Chief Judicial Magistrate, Himmatnagar by way of compromise signed by one Shivabhai D. Patel, who is appointed by the society, and the applicants – original accused. The District Registrar has endorsed that he is a public servant and Government official. He has no right to compromise any criminal case. In view of above, the learned Metropolitan Magistrate has observed that compromise cannot be entertained.
5. Heard Mr.A.M.Dagli, learned advocate for the applicants and Mr.H.L.Jani, learned APP for the respondent – State.
6. Mr.Dagli learned advocate for the applicants has submitted that as far as Section 320 of the Indian Penal Code is concerned, it is compoundable offence and with permission of the Court the offence can be compounded. It is submitted that the learned Magistrate has rejected the application on the sole ground that since the Act was amended in the year 2009 and the application is of 2008 therefore the Act would not apply. It is submitted that compounding of offence of Section 320 of the Indian Penal Code is permissible and as far as Section 408 of the Indian Penal Code it is made compoundable and the person by whom the offence is compounded is the owner of the property and in respect of which breach of trust has been committed. He has prayed that this application be remanded to the learned Magistrate to consider provisions of Section 320 Column No.3 of the amended provisions.
7. Heard Mr.H.L.Jani, learned APP for the respondent – State. He has read the observations made by the learned Magistrate and contended that the complainant is a public servant. He is controller of the society and he has no right to file any compromise purshis. It appears from the endorsement of this public servant that being a public servant he cannot file any compromise. He has contended that the provisions of Section 320 Column No.3 is not considered by the learned Magistrate so matter may be remanded before the learned Magistrate.
8. Heard learned advocate for both the parties at length and in great detail. I have gone through papers produced before me and the judgment and order passed by the learned Judge. I have also considered the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned counsel.
9. From contents of provisions of Section 320 of the IPC it appears that with the permission of the Court person can compound alleged offence and Section 320(2) Column3 is very clear that a person by whom offence may be compounded be owner of the property in respect of which breach of trust has been committed.
10. I am of the opinion that so far as this provisions of law is concerned, it is the duty of the learned Magistrate to consider and pass reasoned order as to whether this offence can be compounded in absence of the complainant, Registrar.
11. This Revision Application is partly allowed. The order dated 30.7.2011 passed by the learned Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.1692 of 2008 below Ex.54, order dated 30.7.2011 passed by the learned Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.1824 of 2009 below Ex.37 and order dated 30.7.2011 passed by the learned Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.636 of 2010 below Ex.25 are quashed and set aside. The cases are remanded to the learned Metropolitan for deciding afresh, preferably within six months, from receipt of copy of this order, after providing opportunity to both the sides purely on merits and in accordance with law.
12. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z. K. SAIYED, J) kks