Authored By : Herbert William Cameron Carnduff, Edmund PellyChapman

Herbert William Cameron Carnduff, J.

1. The appellant before us was the gomastha of therespondent. He was prosecuted by the respondent for criminal breach of trustunder Section 408 of the Indian Penal Code in respect of certain moneyscollected in the course of his duty. The Magistrate before whom the case wasbeing tried, suggested, after haying drawn up a charge, that the matter was onewhich might appropriately be settled out of Court. Accordingly the matter wassettled out of Court. The appellant executed a mortgage-bond for the amountembezzled, and, though the withdrawal of the criminal prosecution is notmentioned in the instrument as forming part of the consideration, theprosecution was in fact dropped by the respondent after the execution of thedeed, and the appellant was then acquitted or discharged. The suit out of whichthis appeal arises, was afterwards brought upon the mortgage-bond executed inthe circumstances just described, and it has been decreed by both the Courtsbelow. The defendant has now preferred this second appeal to the High Court.

2. In my opinion, the appeal clearly must be allowed. Thelower Appellate Court has held that no general rule as to what is, or what isnot, contrary to public policy can be, or has been, laid down, and, relying onNubbee Buksh v. Hingon (1867) 8 W. R. 412 has declared that its conscience feltno repugnance towards the agreement between the respondent and the appellant,and that it entirely failed to see any danger to the public good therein. Now,the case cited by the learned District Judge stands, as far as I know,absolutely alone, and it appeals to me to run counter to the trend of allauthority. It is a case, moreover, of 1867, that is to say, of a time when thelaw on the subject had not been codified V (sic) Indian Contract Act of 1872,and when the Code of Criminal Procedure in force contained no provision, suchas that to be found in Section 345 of the present Code, for the compounding ofoffences. The law, therefore, as to when there might be a compromise in a criminalcase was not settled, and the law as to agreements contrary to public policywas probably equally unsettled. But now we have for our guidance Section 345 ofthe Code of Criminal Procedure of 1898 and Section 23 of the Indian ContractAct of 1872 with its Ill. (h), and there can, so far as I can see, be no doubtas to what the legal position is.

3. The broad principle is laid down by Lord Westbury inWilliams v. Bayley (1866) L. R. 1 H. L. 200, 220 a decision to which thelearned District Judge has himself referred, although he seems to have failedto appreciate its effect. If a criminal case is declared to benon-compoundable, then it is against public policy to compound it, and anyagreement to that end is wholly void hi law. Criminal breach of trust is (seeSection 345 of the present Code of Criminal Procedure) non-compoundable eitherwith or without the sanction of the Court. Kelr v. Leeman and Pearson (1844) 13L. J. Q. B. 359 which was affirmed by the Exchequer Chamber in Keir v. Leeman(1846) 9 Q. B. 371 and followed by the Court of Appeal in Windhill Local Boardof Health v. Vint (1890) 45 Ch. 354 is ample authority for holding the viewthat the circumstance that the Magistrate wrongfully suggested or sanctionedthe compromise makes no difference whatever. And Jibe principle, established byCollins v. Blantern(1765) 1 Snaith L. Cas. 11th Ed. 369 that illegality may bepleaded as a defence to an action on a bond, has been so often recognised andis so well settled that it would be useless to enter into any discussionregarding it.

4. This appeal therefore must be allowed, the decree of theCourt below discharged, and the respondents suit dismissed with coststhroughout.

Edmund Pelly Chapman, J.

5. I agree, but desire to carefully confine my reason forholding that the bond was void to the ground that the consideration for thebond was found by the lower Court to be a promise to withdraw from theprosecution in a case the compromise of which is expressly forbidden by theCode of Criminal Procedure.

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Majibar Rahman vs.Muktashed Hossein (11.06.1912 - CALHC)