# BISW ABAHAN DAS v. GOPEN CHANDRA HAZARIKA & ORS

- **Citation:** [1967] 1 S.C.R. 447
- **Court:** Supreme Court of India
- **Decided:** 1966-09-21
- **Case number:** Civil Appeal No. 94 of 1966
- **Bench:** K. N. Wanchoo, J. M. Shelat, G. M. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bisw-abahan-das-v-gopen-chandra-hazarika-ors-3842
- **Pages:** 7

## Headnote

Assam Forest Regulation 7 of 1891, s. 62'-Effect of compoundiTlfl
forest offence-If results in acquittal.
Code of Criminal Procedure, 1898 (Act S of 1898), ~. 345(6)--Scop•.
Certlorar~Board of Revenue-Grant of e:i:cise licence--Conslderotlort
of conduct in rendering compensation for forest offence and suitabilitylf writ lies.
Tho settlement Of an excise shop in Dibrugarh area with tho respondent was challenged before the Board of Revonuo in an appeal by tho
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 potition and tho High Court relied
on s. 345 ( 6) Cr. P .C.
in holding that the compounding of the offence
had tho .effect of an acquittal with tho result that once tho offenco was
compounded the Board was not entitled to take into account the propriety
or otherwiso 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 &sam 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. Tho appeal must be allowed._
(i) The High Court was not right in coming to tho conclusion that
tho effect of s. 62 of tho &sam Regulation was tho same as that ot
s. 345(6) Cr. P.C. and that no moral turpitude of any discription could
be. said to be involved in the case.
In effect the payment of compensation . by the respondent amounted to his acceptance of tho 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 BJ
U a person is charged with an offence, then unlesa !hero Ii aomo provision for compounding of it the Jaw must tako its courso and the charao
enquired intn resulting either in conviction or acquittal.. It tho cmnposition
of an offence was permh;.sibl~ in law, the effeCt of such composition would
depend on what the Jaw provided tor. If the effect of composition is to
amount to an acquittal then it may bo 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 IJDOUDt to tho vindication Of
the character of the person charged with the offence. [451 HJ
(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 Jaw 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 Jaw or committed an error
apparent on the face of the record. [453 AJ
Nagendra Nath Bora & Anr. v. The Commissioner of Hills Divlswn
and Appeals, Astam & Ors. [1958] S.C.R. · 1240, followed.
447
HS
SUPllEMB COURT REPORTS
[I 967] 1 s.c.R.

## Text

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BISW ABAHAN DAS
v.
GOPEN CHANDRA HAZARIKA & ORS.
September 21, 1966
[K. N. WANCHOO, J. M. SHELAT AND G. M. MITTER, JJ.]
Assam Forest Regulation 7 of 1891, s. 62'-Effect of compoundiTlfl
forest offence-If results in acquittal.
Code of Criminal Procedure, 1898 (Act S of 1898), ~. 345(6)--Scop•.
Certlorar~Board of Revenue-Grant of e:i:cise licence--Conslderotlort
of conduct in rendering compensation for forest offence and suitabilitylf writ lies.
Tho settlement Of an excise shop in Dibrugarh area with tho respondent was challenged before the Board of Revonuo in an appeal by tho
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 potition and tho High Court relied
on s. 345 ( 6) Cr. P .C.
in holding that the compounding of the offence
had tho .effect of an acquittal with tho result that once tho offenco was
compounded the Board was not entitled to take into account the propriety
or otherwiso 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 &sam 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. Tho appeal must be allowed._
(i) The High Court was not right in coming to tho conclusion that
tho effect of s. 62 of tho &sam Regulation was tho same as that ot
s. 345(6) Cr. P.C. and that no moral turpitude of any discription could
be. said to be involved in the case.
In effect the payment of compensation . by the respondent amounted to his acceptance of tho 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 BJ
U a person is charged with an offence, then unlesa !hero Ii aomo provision for compounding of it the Jaw must tako its courso and the charao
enquired intn resulting either in conviction or acquittal.. It tho cmnposition
of an offence was permh;.sibl~ in law, the effeCt of such composition would
depend on what the Jaw provided tor. If the effect of composition is to
amount to an acquittal then it may bo 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 IJDOUDt to tho vindication Of
the character of the person charged with the offence. [451 HJ
(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 Jaw 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 Jaw or committed an error
apparent on the face of the record. [453 AJ
Nagendra Nath Bora & Anr. v. The Commissioner of Hills Divlswn
and Appeals, Astam & Ors. [1958] S.C.R. · 1240, followed.
447
HS
SUPllEMB COURT REPORTS
[I 967] 1 s.c.R.
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 Ruic No. 208 of 1964.
Sarjoo Prasad, H. Goswami and D. N. Mukherjee, for the
appellant. ·
R. Gopa/akrishnan, 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 fol.
lows. 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 groen
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
-0f Dibru Reserve had detected that Hazarika had illegally felled
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BISWABAHAN v. GOPEN CHANDRA (Mitter, J.)
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 suitabk 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. (!) 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 i:easonable 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
SUPREME COURT REPORTS
(1967] l S C.R.
(b) when any property has been seized as liable to confiscation,
1o 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
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.(I) 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
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B!SWABAHAN v. GOPEN CHANDRA (Mitter, J.)
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 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 t<;> 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. Rupaku/a Ramkrishnayya and another(')
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
(I) A.I.R. 1942 Mad. 1.73 at 176.
(2) I.L.R. I Bom. 147 at p. I SI.
452
SUPRl!MI! COUllT REPORTS
(1967) I S.C.R.
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 a1101/ier v. The
Commissio11er of Hills Dfrisio11 and Appeals, Assam a11d others(')
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 Re-
,·enue 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 e.xamined 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 cerliorari 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".
Jt 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) 11958] S.C.R. 1240.
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BISWABAHAN v. OOPl!N CHANDRA (Mitter, J.)
453
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In this case the Board of Revenue had not gone wron~ in law
in taking into consideration Hazarika's conduct in renderi11cg 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
B
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 Higl/.
Court is set aside and that of the Board of Revenue is restored.
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The respondent will pay the costs of the appellant.
Y. P.
Appeal allowed.