Biswabahan Das Vs. Gopen Chandra
Hazarika & Ors  INSC 175 (21 September 1966)
21/09/1966 MITTER, G.K.
CITATION: 1967 AIR 895 1967 SCR (1) 447
CITATOR INFO :
RF 1992 SC 248 (43)
Assam Forest Regulation 7 of 1891, s.
62-Effect of compounding forest offence-If results in acquittal.
Code of Criminal Procedure, 1898 (Act 5 of
1898), s. 345(6)Scope.
Certiorari-Board of Revenue-Grant of excise
licence Consideration of conduct in rendering compensation for forest offence
and suitability-If writ lies.
The settlement of an excise shop in Dibrugarh
area with the respondent was challenged before the Board of Revenue in an
appeal by the appellant. The Board held that the respondent was not a suitable
person because as a forest contractor and holder of a firewood mahal licence,
he had compounded an offence of illegally felling green trees by paying compensation.
The respondent filed a writ petition and the High Court relied on s. 345(6) Cr.
P.C. in holding that the compounding of the offence had the effect of an
acquittal with the result that once the offence was compounded the Board was
not entitled to take into account the propriety or otherwise of the conduct of
the respondent. In appeal to this Court, the appellant contended that (i) s.
345(6) Cr.P.C., had no application to an offence under the Assam Forest
Regulation 7 of 1891, and (ii) that the Board was right in considering the
respondent's conduct in rendering compensation for a forest offence.
HELD. The appeal must be allowed.
(i) The High Court was not right in coming to
the conclusion that the effect of s. 62 of the Assam Regulation was the same as
that of s. 345(6) Cr. P.C. and that no moral turpitude of any description could
be said to be involved in the case. In effect the payment of compensation by
the respondent amounted to his acceptance of the charge against him. Section
62(2) of the Assam Regulation only protected him with regard to further
proceeding, but had not the effect of clearing his character or vindicating his
[451 A-B; 452 B] If a person is charged with
an offence, then unless there is some provision for compounding of it the law
must take its course and the charge enquired into resulting either in
conviction or acquittal. If the composition of an offence was permissible in
law, the effect of such composition would depend cm what the law provided for.
If the effect of composition is to amount to an acquittal then it may be said
that no stigma should attach to the Character of the person, but unless it is
expressly provided for the mere rendering of compensation would not amount to
the vindication of the character of the person charged with the offence. [451
H] (ii) The High Court was not justified in quashing the appellate order of the
Board under Art. 226 of the Constitution. The Board had not gone wrong in law
in considering the respondent's conduct in rendering compensation for a forest
offence. The Board therefore could be said to have exceeded its jurisdiction
under the law or committed an error apparent on the face of the record. [453 A]
Nagendra Nath Bora & Anr. v. The Commissioner of Hills Division and
Appeals, Assam & Ors.  S.C.R. 1240, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 94 of 1966.
Appeal by special leave from the judgment and
order dated November 24, 1964 of the Assam and Nagaland High Court in Civil
Rule No. 208 of 1964.
Sarjoo Prasad, H.Goswami and D. N. Mukherjee,
for the appellant.
R. Gopalakrishnan, for respondent No. 1.
The Judgment of the Court was delivered by
Mitter,J.This is an appeal by special leave from a judgment and order of the
High Court of Assam and Nagaland dated January 24, 1964 passed in Civil Rule
No. 208 of 1964 under Art. 226 of the Constitution of India.
The sole question involved in this appeal is
whether the High Court was right in quashing the order of the Board of Revenue
on the ground that the very basis on which the appellate order of the Board was
founded did not exist and that the Board had gone wrong in taking into
consideration the compounding of an offence under the Forest Regulation by the
petitioner before the High Court as affecting his suitability in getting
settlement of an excise shop in Dibrugarh area.
The facts necessary for the disposal of this
appeal are as follows. One Biswabahan Das, the appellant before us, was the
lessee of the said shop from 1956 to 1962. The shop was settled with him again
for the term 1962-64 by the Deputy Commissioner. On appeal to the Board of Revenue,
this was set aside, on the basis of a report submitted by the Inspector of
Excise and the shop was settled with the present respondent. Biswabahan went to
the Assam High Court with a writ petition and succeeded there on the ground
that the evidence of the Inspector had been taken behind his back and as such
should not have been taken into consideration, but the High Court also held in
that matter that no useful purpose would be served by granting any relief to
Biswabahan at that late stage when the period of the licence was about to
expire. This had the result that Hazarika remained the lessee of the shop when
a fresh settlement became due. The Deputy Commissioner settled the shop with
Hazarika again for the years 1964 to 1967. ;This settlement was challenged in
appeal before the Board of Revenue. The Board went into the question as to
whether Hazarika was a suitable person because as the holder of a firewood
mahal licence he had compounded an offence of illegally felling green trees by
paying Rs. 50 when he was acting as a forest contractor.
From the appellate order of the Board of
Revenue which was .quashed by the High Court, it appears that a Forest Beat
Officer of Dibru Reserve had detected that Hazarika had illegally felled 449
some green trees and converted them into firewood although under the agreement
between him and the authorities he was only entitled to cut and collect
firewood from dead and fallen trees. There was no dispute that Hazarika had
paid compensation of Rs. 50 in respect thereof and had filed an affidavit
before the Board of Revenue that a mistake had been committed by his labourers
in collecting some broken and fallen green trees in his absence. The Board was
not satisfied with this explanation and took the view that the fact of Hazarika
having compounded the offence did not clear his conduct although he had
succeeded in getting a subsequent settlement of a forest mahal. It was observed
by the Board, "forest mahals and excise shops are settled under different
sets of rules and the fact that the respondent (Hazarika) was considered
suitable for one would not automatically entitle him to the other. In the
matter of settlement of excise shops, the settling authority is entitled under
Executive Instruction III to take other factors under consideration including
the moral character of the tenderer in determining his suitability. This Board
has consistently held that conduct of a tendered is a valid consideration in
this context. In view of his conduct as discussed above we do not consider respondent
(Hazarika) to be a suitable candidate and are unable to uphold the settlement
made with him." The High Court relied on s. 345(6) of the Criminal.
Procedure Code to reach the conclusion that
the compounding of the offence had the effect of an acquittal with the result
that once the offence was compounded the Board was not entitled to take into
account the propriety or otherwise of the conduct of Hazarika in respect of the
offence with which he had been charged.
Before us Mr. Sarjoo Prasad appearing in
support of the appeal contended that s. 345(6) of the Criminal Procedure Code
had no application to an offence under the Assam Forest Regulation VII of 1891.
Sub-section (5) of s. 3 of the said
Regulation defines a "forest offence" as an offence punishable under
the Regulation or any rule there under. Section 62 sub-s. (1) of the said
Regulation which has the marginal note "power to compound offences"
provides" The State Government may, by notification in the official
Gazette, empower a Forest Officer by name, or as holding an office,(a) to
accept from any person against whom a reasonable suspicion exists that he has
committed any forest offence, other than an offence specified in section 58 or
section 59, a sum of money by way of compensation for the offence which such,
person is suspected to have committed; and 450 (b) when any property has been
seized as liable to confiscation, to release the same on payment of the value
thereof as estimated by such officer." Sub-section (2) provides:"On
the payment of such sum of money, or such value, or both, as the case may be,
to such officer, the suspected person, if in custody, shall be discharged, the
property, if any, seized shall be released and no further proceedings shall be
taken against such person or property." We may now note the relevant
provisions of the Code of Criminal Procedure. Section 345(1) of the Code
prescribes that the offences there under specified may be compounded by the
persons mentioned in the third column of the appended Table. By subs. (2)
provision is made for the compounding of the offences specified in the first
column of the Table appended to this sub-section by certain persons with the
permission of the court before which any prosecution for the offence is
pending. Sub-s. (6) lays down that" The composition of an offence under
this section shall have the effect of the acquittal of the accused with whom
the offence has been compounded." It is, therefore, clear that to have the
effect of an acquittal the offence compounded must be one specified either
under sub-s. (1) or sub-s. (2). The principle behind the scheme seems to be
that wrongs of certain classes which affect mainly a person in his individual
capacity or character may be sufficiently redressed by composition with or without
the leave of the court as the case may be but any such composition would have
the effect of an acquittal. It was urged by Mr. Sarjoo Prasad that assuming the
effect of an acquittal to be the wiping out or negation of the wrongful conduct
on the part of the accused, the scope of sub-s. (6) was only limited to the
offences specified in sub-ss. (1) and (2) of s. 345 and the principle thereof
could not be extended to offences under other Acts unless there was a provision
similar to sub-s. (6) in those Acts.
It must be borne in mind that although the
marginal note to s. 62 of the Assam Regulation is "power to compound
offences" the word "compounding" is not used in sub-s.(1) cl.
(a) of that section. That provision only empowers a forest officer to accept
compensation for a forest offence from a person suspected of having committed
it. The person so suspected can avoid being proceeded with for the offence by
rendering compensation. He may think that he was being unjustly suspected of an
offence and he ought to defend himself or he may consider it prudent on his
part to pay such compensation in order to avoid the harassment of a prosecution
even when he is of the view that he had not committed the offence. By adopting
the latter course he does not remove the 451 suspicion of having committed the
offence unless he is to have such benefit conferred on him by some provision of
In effect the payment of compensation amounts
to his acceptance of the truth of the charge against him. Sub-s.
(2) of s. 62 only protects him with regard to
further proceedings, but has not the effect of clearing his character or
vindicating his conduct.
Our attention was drawn by the learned
Advocate for the respondent to ss. 58 and 59 of the Assam Regulation which
provides for certain offences being visited with imprisonment for a term or
with fine or with both and on a comparison of those sections with s. 62 it was
argued that the latter related only to very minor offences which the
Legislature in its wisdom had thought compoundable by the rendering of
compensation. It was urged that the suspicion of having committed a forest
offence under s. 62(1) (a) should not amount to the imputation of any stigma on
the character of the suspected person when by the rendering of compensation for
such an offence he was to be protected from further proceedings and the
principle behind sub-s. (2) of s. 62 was the same as that contained in s. 345
(6) of the Code of Criminal Procedure. It was said that other statutes
contained provisions for compounding of certain offences and the object of the
Legislature in all such cases was that trivial offences once compounded were
not to be raked up again or taken any notice of afterwards.
Reference was made to the observations of the
Madras High Court in Chandanmal v. Rupakula Ramkrishnayya and another(1) that
an agreement to compound an offence under s. 345(1) of the Criminal Procedure
Code was not in violation of any law or public policy.
We were also referred to certain general
observations in the case of Reg. v. Rahimat(2) that there was a class of cases
which might be the subject either of criminal or civil cognizance and if the
person injured desired to obtain compensation the law did not forbid him
whereas if he invoked the penal interposition of the Magistrate, that
interposition was not refused.
From the above it was sought to be argued
that if the wrong done was of a very trivial nature the rendering of
compensation was in the eye of the law sufficient to redress it and to put an
end to the matter without any reflection on the character of the person charged
with having done the wrong.
We are unable to accept the above reasoning.
If a person is charged with an offence, then unless there is some provision for
composition of it the law must take its course and the charge enquired into
resulting either in conviction or acquittal. If composition of an offence was
permissible under the law, the effect of (1) A.I.R. 1942 Mad. 173 at 176.
(2) I.L.R. 1 Bom. 147 at p. 151.
452 such composition would depend on what the
law provided for.
If the effect of composition is to amount to
an acquittal then it may be said that no stigma should attach to the character
of the person, but unless that is expressly provided for the mere rendering of
compensation would not amount to the vindication of the character of the person
charged with the offence.
The High Court, therefore, was not right in
coming to the conclusion that the effect of s. 62 of the Assam Regulation was
the same as that of s. 345(6) of the Criminal Procedure Code and that no moral
turpitude of any description could be said to be involved in the case. It
follows that the High Court was not right in quashing the order of the Board of
Revenue by the issue of a writ of certiorari. In Nagendra Nath Bora and another
v. The Commissioner of Hills Division and Appeals, Assam and others(1) the
Assam High Court had quashed certain orders of settlement of a number of
country spirit shops made by the Commissioner of the Hills Division and Appeals
setting aside the orders of the Deputy Commissioner and the Excise
Commissioner. It was there pointed out that the powers of the Appellate
Authorities in the matter of settlement would be co-extensive with the powers
of the primary authority, namely, the District Collector of the Sub-Divisional
Officer. The same can be said of the powers of the Board of Revenue in this
This Court observed (p. 1259) that" There
is no doubt that if the Appellate Authority whose duty it is to determine
questions affecting the right to settlement of a liquor shop, in a judicial or
quasi-judicial manner, acts in excess of its authority vested by law, that is
to say, the Act and the rules there under, its order is subject to the
controlling authority of the High Court. The question, therefore, is whether
the High Court was right in holding that the Appellate Authority had exceeded
its legal power." The Court examined at length the extent of jurisdiction
of superior courts to issue writs of certiorari. "On an examination of the
authorities of this Court as also of the courts in England" it was pointed
out that "one of the grounds on which the jurisdiction of the High Court
on certiorari may be invoked, is an error of law apparent on the face of the,
record and not every error either of law or fact, which can be corrected by a
superior court, in exercise of its statutory powers as a court of appeal or
revision". It was also remarked that an order of certiorari was not meant
to take the place of an appeal and that its purpose was only to determine whether
the inferior tribunal had exceeded its jurisdiction or had not proceeded in
accordance with the essential requirements of the law which it was meant to
(1)  S.C.R. 1240.
453 In this case the Board of Revenue had not
gone wrong in law in taking into consideration Hazarika's conduct in rendering
compensation for a forest offence. The Board was quite competent to take the
view that Hazarika was not vigilant in observing the law even if it had
found-when it did not-that Hazarika's explanation was not unconvincing. The
Board cannot be said to have exceeded its jurisdiction under the law or
committed an error apparent on the face of the record. It follows that the High
Court was not justified in quashing the appellate order of the Board under Art.
226 of the Constitution.
In the result, the appeal is allowed, the
order of the High Court is set aside and that of the Board of Revenue is
restored. The respondent will pay the costs of the appellant.
Y.P. Appeal allowed.