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PETITIONER: BISWABAHAN DAS

       Vs.

RESPONDENT: GOPEN CHANDRA HAZARIKA & ORS.

DATE OF JUDGMENT: 21/09/1966

BENCH: MITTER, G.K. BENCH: MITTER, G.K. WANCHOO, K.N. SHELAT, J.M.

CITATION:  1967 AIR  895            1967 SCR  (1) 447  CITATOR INFO :  RF         1992 SC 248  (43)

ACT: 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.

HEADNOTE: 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  com- pensation.   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 conduct. [451 A-B; 452 B] If a person is charged with an offence, then unless there is

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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.  [1958]  S.C.R.  1240, followed. 448

JUDGMENT: 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

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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  sub- sequent  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 tenderer  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 thereunder.  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

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             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 thereunder 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 pro- secution  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 law. 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 res- pondent  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

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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

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said  of  the powers of the Board of Revenue in  this  case. 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               thereunder,  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 administer. (1) [1958] 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. 454