iminal Appeals Nos 81 and 82 of 1958
Appeals by special leave from the judgment and order dated February 28 1958 of the Allahabad High Court in Criminal Appeal No 1809 of 1957 and Referred No 138 of 1957 arising out of the judgment and order dated November 28 1957 of the Court of Sessions at Farrukhabad in Sessions Trial No 61 of 1957
Jai Gopal Sethi and B C Misra for the appellants
G C Mathur and C P Lal for the respondent
942 1958
December 18
The Judgment of the Court was delivered by KAPUR J
These are two appeals which arise out of the same judgment and order of the High Court at Allahabad and involve a common question of law
Appellants Tej Singh and Mizaji are father and son Subedar is a nephew of Tej Singh Machal is Tej Singh s cousin and Maiku was a servant of Tej Singh
They were all convicted under section 302 read with section 149 of the Indian Penal Code and except Mizaji who was sentenced to death they were all sentenced to imprisonment for life
They were also convicted of the offence of rioting and because Tej Singh and Mizaji were armed with a spear and a pistol respectively they were convicted under section 148 of the Indian Penal Code and sentenced to three years  rigorous imprisonment and the rest who were armed with lathis were convicted under section 147 of the Indian Penal Code and sentenced to two years  rigorous imprisonment
All the sentences were to run concurrently but Mizaji s term of imprisonment was to come to an end after  he is hanged 
Against this order of conviction the appellants took an appeal to the High Court and both their convictions and sentences were confirmed
The offence for which the appellants were convicted was committed on July 27 1957 at about sunrise and the facts leading to the occurrence were that field No 1096 known as Sukhna field was recorded in the revenue papers in the name of Banwari who was recorded as in possession as tenant in chief Sometime in 1949 he mortgaged this plot of land to one Lakhan Singh
In 1952 this field was shown as being under the cultivation of Rameshwar the deceased and four others persons Ram Sarup who was the uncle of Rameshwar Jailal his brother Sita Ram and Saddon
The record does not show as to the title under which these persons were holding possession
The mortgage was redeemed sometime in 1953
The defence plea was that in the years 1954 1955 1956 possession was shown as that of Banwari
But if there were any such entries they were corrected in 1956 and possession was shown in the revenue papers as that of 943 Rameshwar and four others abovenamed
These entries showing cultivating possession of the deceased and four others were continued in 1957
On April 18 1957 Banwari sold the field No 1096 to Tej Singh appellant who made an application for mutation in his favour but this was opposed by the deceased and four other persons whose names were shown as being in possession
In the early hours of July 27 1957 the five appellants came armed as above stated
Mizaji s pistol is stated to have been in the fold phent of his dhoti
A plough and plank known as patela and bullocks were also brought
The disputed field had three portions in one sugarcane crop was growing in the other Jowar had been sown and the rest had not been cultivated
Maiku started ploughing the Jowar field and overturned the Jowar sown therein while Tej Singh with his spear kept watch
Bateshwar P W 7 seeing what was happening gave information of this to Ram Sarup who accompanied by Rameshwar Jailal and Israel came to the Sukhna field but unarmed
Ram Sarup inquired of Tej Singh as to why he was damaging his field and Tej Singh replied that he had pur chased the field and therefore would do  what he was doing  which led to an altercation
Thereupon the four persons cutting the sugarcane crop ie Mizaji Subedar Machal and Maiku came to the place where Tej Singh was and upon the instigation of Tej Singh Mizaji took out the pistol and fired which hit Rameshwar who fell down and died I hour later
The accused after Rameshwar fell down fled from the place
Ram Sarup Jailal and Israel then went to the police station Nawabgunj and Ram Sarup there made the first information report at about 7 30 a m in which all the five accused were named
When the police searched for the accused they could not be found and proceedings were taken under sections 87 and 88 of the Code of Criminal Procedure but before any process was issued Subedar Tej Singh and Machal and Maiku appeared in court on August 3 1957 and Mizaji on August 14 1957 and they were taken into custody
The prosecution relied upon the evidence of the eyewitnesses and also of Bateshwar who carried the 944 information to the party of complainant as to the coming of Tej Singh and others
The defence of the accused was a total denial of having participated in the occurence and as a matter of fact suggested that Rameshwar was killed in a dacoity which took place at the house of Ram Sarup
The learned Sessions Judge accepted the story of the prosecution and found Ram Sarup to be in possession of the field he also found that the appellants formed an unlawful assembly  the common object of which was to take forcible possession of the field and to meet every eventuality even to the extent of causing death if they are interfered with in their taking possession of the field  and it was in prosecution of the common object of that assembly that Mizaji had fired the pistol and therefore all were guilty of the offence of rioting and of the offence under section 302 read with section 149 Indian Penal Code
The High Court on appeal held that the appellants were members of an unlawful assembly and had gone to the Sukhna field with the object of taking forcible possession and  there is also no doubt that the accused had gone there fully prepared to meet any eventuality even to commit murder if it was necessary for the accomplishment of their common object of obtaining possession over the field
There is also no doubt that considering the various weapons with which the accused had gone armed they must have known that there was likelihood of a murder being committed in prosecution of their common object 
The High Court also found that all the appellants had gone together to take forcible possession and were armed with different weapons and taking their relationship into consideration it was unlikely that they did not know that Mizaji was armed with a pistol and even if the common object of the assembly was not to commit the murder of Rameshwar or any other member of the party of the complainants II there can be no doubt that the accused fully knew considering the nature of weapons with which they were armed namely pistol and lathis that murder was likely to be committed in their attempt to take forcible possession over the disputed land 
The High Court further 945 found that the accused had gone prepared if necessary to commit the murder in prosecution of their common object of taking forcible possession
They accepted the testimony of Matadin and Hansram who stated that all the accused had asked Ram Sarup and his companions to go away otherwise they would finish all of them and when they resisted Mizaji accused fired the pistol at them and thus in view of the nature of the weapons with which they had gone to the disputed piece of land  they knew that murder was likely to be committed in prosecution of their object 
Another finding given by the High Court was that the appellants wanted to forcibly dispossess the complainants and with that object in view they went to the disputed field to take forcible possession and that the complainant s party on coming to know of it went to the field and resisted
Mizaji fired the pistol and thus caused the death of Rameshwar
The High Court also held   We are also of the opinion that the act of the accused was premeditated and well designed and that the accused considering the circumstances of the case and the weapons with which they were armed knew that murder was likely to be committed in accomplishment of their common object
 For the appellants it was contended that the High Court was not justified in drawing the inference that other members of the party of the appellants had knowledge of the existence of the pistol
There is no doubt that on the evidence the father Tej Singh must have known that the son Mizaji had a pistol
And in the circumstances of this case the High Court cannot be said to have erroneously inferred as to the knowledge of the rest as to the possession of pistol by Mizaji
The question for decision is as to what was the common object of the unlawful assembly and whether the offence of murder was committed in prosecution of the common object or was such an offence as the members of the unlawful assembly knew was likely to be committed in prosecution of the common object
It was argued on behalf of the appellants that the 119 946 common object was to take forcible possession and that murder was committed neither in prosecution of the common object of the unlawful assembly nor was it such as the members of that assembly knew to be likely to be committed
That the common object of the unlawful assembly was to take forcible possession of the Sukhana field cannot be doubted
Can it be said in the circumstances of this case that in prosecution of the common object the members of the unlawful assembly were prepared to go to the extent of committing murder or they knew that it was likely to be committed  One of the members of the assembly Tej Singh was armed with a spear
His son Mizaji was armed with a pistol and others were carrying lathis
The extent to which the members of the unlawful assembly were prepared to go is indicated by the weapons carried by the appellants and by their conduct their collecting where Tej Singh was and also the language they used at the time towards the complainant s party
The High Court has found that the appellants  had gone prepared to commit murder if necessary in the prosecution of their common object of taking forcible possession of the land  which it based on the testimony of Matadin and Hansraj who deposed that when the complainant s party arrived and objected to what the appellants were doing they the appellants  collected at once  and asked Ram Sarup and his companions to go away otherwise they would finish all of them and when the latter refused to go away the pistol was fired
That finding would indicate the extent to which the appellants were prepared to go in the prosecution of their common object which was to take forcible possession of the Sukhana field
The High Court also found that in any event the case fell under the second part of section 149 Indian Penal Code in view of the weapons with which the members of the unlawful assembly were armed and their conduct which showed the extent to which they were prepared to go to accomplish their common object
Counsel for the appellants relied on Queen vs Sabid Ali 1 and argued that section 149 was inapplicable
There 1 Cr 947 the learned Judges constituting the full bench gave differing opinions as to the interpretation to be put on section 149 Indian Penal Code
That was a case where the members of an unlawful assembly went to take forcible possession of a piece of land
The view of the majority
of the Judges was that finding unexpected opposition by one member of the party of the complainants and also finding that they were being over
powered by him one of the members of the unlawful assembly whose exact time of joining the unlawful assembly was not proved fired a gun killing one of the occupants of the land who were resisting forcible dis possession
It was also held that the act had not been done with a view to accomplish the common object of driving the complainants out of the land but it was in consequence of an unexpected counter attack
Ainslie J was of the opinion that the common object of the assembly was not only to forcibly eject the occupants but to do so with show of force and that common object was compounded both of the use of the means and attainment of the end and that it extended to the committing of murder
Phear J said that the offence committed must be immediately connected with that common object by virtue of the nature of the object
The members of the unlawful assembly must be prepared and intend to accomplish that object at all costs
The test was did they intend to attain the common object by means of murder if necessary  If events were of sudden origin as the majority of the learned Judges held them to be in that case then the responsibility was entirely personal
In regard to the second part he was of the opinion that for its applica tion it was necessary that members of the assembly must have been aware that it was likely that one of the members of the assembly would do an act which was likely to cause death
Couch C J was of the opinion that firing was not in prosecution of the common object of the assembly and that there was not much difference between the first and the second part of section 149
He said   At first there does not seem to be much difference between the two parts of the section and I think the 948 cases which would be within the first offences committed in prosecution of the common object would be generally if not always within the second namely offences which the parties knew to be likely to be committed in the prosecution of the common object
But I think there may be cases which would come within the second part and not within the first
 Jackson J held in the circumstances of that case that the assembly did not intend to commit nor knew it likely that murder would be committed
Pontifex J interpreted the section to mean that the offence committed must directly flow from the common object or it must so probably flow from the prosecution of the common object that each member might antecedently expect it to happen
In the second part know meant to know that some members of the assembly had previous knowledge that murder was likely to be committed
This section has been the subject matter of interpretation in the various High Court of India but every case has to be decided on its own facts
The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object
It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object it is enough if it is adopted by all the members and is shared by all of them
In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members
Even if the offence committed is not in direct prosecution of the common object of the assembly it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed
The expression I know  does not mean a mere possibility such as might or might not happen
For instance it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty 949 under the second part of section 149
Similarly if a body of persons go armed to take forcible possession of the land it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all
There is a great deal to be said for the opinion of Couch C J in Sabid Ali s case 1 that when an offence is committed in prosecution of the common object it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object
That however does not make the converse proposition true there may be cases which would come within the second part but not within the first
The distinction between the two parts of section 149 Indian Penal Code cannot be ignored or obliterated
In every case it would be an issue to be determined whether the offence committed falls within the first part of section 149 as explained above or it was an offence such as the members of the assembly know to be likely to be committed in prosecution of the common object and falls within the second part
Counsel for the appellants also relied on Chikkarange Gowde vs State of Mysore 2
In that case there were special circumstances which were sufficient to dispose of it
The charge was a composite one mixing up common intention and common object under sections 34 and 149 Indian Penal Code and this Court took the view that it really was one under section 149 Indian Penal Code
The charge did not specify that three of the members had a separate common intention of killing the deceased different from that of the other members of the unlawful assembly
The High Court held that the common object was merely to chastise the deceased and it did not hold that the members of the unlawful assembly knew that the deceased was likely to be killed in prosecution of that common object
The person who was alleged to have caused the fatal injury was acquitted
This Court held that on the findings 1 Cr
2 AIR 1956 SC 731
950 of the High Court there was no liability under section 34 and further the charge did not give proper notice nor a reasonable opportunity to those accused to meet that charge
On these findings it was held that conviction under section 302 read with section 149 was not justified in law nor a conviction under section 34
It was next argued that the appellants went to take possession in the absence of the complainants who were in possession and therefore the common object was not to take forcible possession but to quietly take possession of land which the appellants believed was theirs by right
In the first place there were proceedings in the Revenue Department going on about the land and the complainants were opposing the claim of the appellants and then when people go armed with lethal weapons to take possession of land which is in possession of others they must have the knowledge that there would be opposition and the extent to which they were prepared to go to accomplish their common object would depend on their conduct as a whole
The finding of the High Court as we have pointed out was that the appellants had gone with the common object of getting forcible possession of the land
They divided themselves into three parties Maiku appellant was in the field where jowar was sown and he was ploughing it Mizaji Subedar and Machal were in the sugar field and cutting the crop
Tej Singh was keeping watch
When the party of the complainants on being told of what the appellants were doing came they protested to Tej Singh
Thereupon all the members of Tej Singh s party gathered at the place where Tej Singh was and asked the complainants  to go away otherwise they would be finished  but they refused to go
Thereupon Tej Singh asked Mizaji to fire at them and Mizaji fired the pistol which he was carrying in the fold of his dhoti as a result of which Rameshwar was injured fell down and died I hour later
It was argued on behalf of the appellants that in these circumstances it cannot be said that the offence was committed in prosecution of the common object of the assembly which was clear from the fact 951 that the party had divided itself into three parts and only Mizaji used his pistol and the other appellants did not use any weapon and just went away
Both the Courts below have found that the pistol was fired by Mizaji and thus he was responsible for causing the death of Rameshwar which would be murder and also there is no doubt that Tej Singh would be guilty of abetment of that offence
But the question is whether section 149 is applicable in this case and would cover the case of all the appellants  This has to be concluded from the weapons carried and the conduct of the appellants
Two of them were armed one with a spear and the other with a pistol
The rest were armed with lathis
The evidence is that when the complainants  party objected to what the appellants did they all collected together and used threats towards the complainants  party telling them to go away otherwise they would be finished and this evidence was accepted by the High Court
From this conduct it appears that members of the unlawful assembly were prepared to take forcible possession at any cost and the murder must be held to be immediately connected with the common object and therefore the case falls under section 149 Indian Penal Code and they are all guilty of murder
This evidence of Hansram and Matadin which relates to a point of time immediately before the firing of the pistol shows that the members of the assembly at least knew that the offence of murder was likely to be committed to accomplish the common object of forcible possession
It was then contended that Mizaji did not want to fire the pistol and was hesitating to do so till be was asked by his father to fire and therefore penalty of death should not have been imposed on him
Mizaji carried the pistol from his house and was a member of the party which wanted to take forcible possession of the land which was in possession of the other party and about which proceedings were going on before the Revenue Officer
He fully shared the common object of the unlawful assembly and must be taken to have carried the pistol in order to use it in the prosecution of the common object of the assembly and he did use 952 it
Merely because a son uses a pistol and causes the death of another at the instance of his father is no mitigating circumstance which the courts would take into consideration
In our opinion the courts below have rightly imposed the sentence of death on Mizaji
Other appellants being equally guilty under section 149 Indian Penal Code have been rightly sentenced to imprisonment for life
The appeals Must therefore be dismissed
Appeals dismissed


Summary:
Before this Court the appellant defendant challenged the judgment of the High Court which held that the decree made against the defendant in terms of a compromise in writing and signed by the counsel representing the parties was valid and binding on the parties and that in the ab sence of any challenge against the order made under Order XXI rule 23 Civil Procedure Code allowing execution of the decree the defendant was no longer entitled to resist execution by recourse to Chamber Summons
The appellant contended that the High Court was wrong in holding that notwithstanding the amendment of 1976 insert ing the words in writing and signed by the parties  it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties and not necessarily by the parties in person and that a decree based on a compromise not signed by the parties in person was a nullity and was incapable of execution
The respondents submitted that it was always under stood that the expression party  included his pleader in matters relating to appearance in court and his counsel in the cause therefore had express or implied authority unless specifically withdrawn or limited by the party to represent him in court and do whatever was necessary in connection with the conduct of his suit including adjustment of the suit by agreement or compromises
188 Dismissing the appeal this Court HELD
Counsel s role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit
However a compromise decree may incorporate not only matters failing within the subject matter of the suit but also other matters which are collat eral to it
The position before the amendment in 1976 was that in respect of the former the decree was executable but in respect of the latter it was not executable though admissible as judicial evidence of its contents
199 C D 2
After the amendment of 1976 a consent decree is executable in terms thereof even if it comprehends matters failing outside the subject matter of the suit but concern ing the parties
201 E 3
The object of the amendment of Order XXIII Rule 3 CPC was to provide an appropriate remedy to expedite proceedings in Court
That object must be borne in mind by adopting a purposive construction of the amended provisions
The legislative intention being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears the word parties  must be so construed as to yield a beneficent result so as to eliminate the mischief the legislature had in mind
202 D E 4
There is no reason to assume that the legislature intended to curtail the implied authority of counsel en gaged in the thick of proceedings in court to compromise or agree on matters relating to the parties even if such matters exceed the subject matter of the suit
The relation ship of counsel and his party or the recognised agent and his principal is a matter of contract and with the freedom of contract generally the legislature does not interfere except when warranted by public policy and the legislative intent is expressly made manifest There is no such declara tion of policy or indication of intent in the present case
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradi tion of an ever alert independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral heating which is in sharp contrast to the inquisitorial traditions of the civil law of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are 189 considered relatively insignificant
202 E H 5
Considering the traditionally recognised role of counsel in the common law system and the evil sought to be remedied by Parliament by the CPC Amendment Act 1976 namely attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties and allowing the compromise decree to com prehend even matters falling outside the subject matter of the suit but relating to the parties the legislature cannot in the absence of express words to such effect be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly autho rised agents
Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and en largement of the scope of compromise
205 F H 6
A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight
A compromise decree creates an estoppel by judgment
207 B 7
In the present case the notice issued under Order XXI rule 22 was personally served on the defendant but he did not appear or show cause why the decree should not be executed
The notice was accordingly made absolute by order dated 2311990 and leave was granted to the plaintiff to execute the decree
The decree passed by the High Court on 1861984 in terms of the compromise was a valid decree and it constituted res judicata
206 F G 8
The consent decree made on 1861984 remained unchal lenged
None questioned it
The appellant never raised any doubt as to its validity or genuineness
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf
Nevertheless after six years he questioned its validity by means of chamber summons
This was an unsuc cessful challenge by reason of delay estoppel or res judi cata
207 E F Halsbury section Laws of England 4th Ed Vol3 Paras 1181  1183 Francis Bennion s Statutory Interpretation Butter worths 1984 para 133 Crawford s Statutory Construction Para 254 Rene David English Law and French Law Tagore Law Lectures 1980 Spencer Bower to Turner in Res 190 Judicata Second Edition Page 37 The Common Law in India 1960 The Hamlyn Lectures Twelfth Series
pp 1 4 referred to
Patience Swinfen vs Lord Chelmsford 18605 H  N 890 at 912 SCEx 382 Mathews vs Munster 1887 20 QB 141 at 144 Rondel vs Worsley 1965 1 QB 443502 Babu Sheonandan Prasad Singh Ors
vs Hakim Abdul Fateh Mohammed Reza  Anr AIR 1935 PC 119121 Sourendera Nath Mitra  Ors
vs Tarubala Dasi AIR 1930 PC 158 Hemanta Kumari Debi vs Midnapur Zamindari Co AIR 1919 PC 79 Jamilabai Abdul Kadar vs Shankerlal Gulabchand  Ors 1975 Supp
SCR 336 Monoharbahal Colliery Calcutta vs KN Mishra  Ors AIR 1975 SC 1632 National Assistance Board vs Wilkin son  Sailendra Narayan Bhania Deo vs The State of Orissa   Mohanlal Goenka vs Benoy Kishna Mukherjee  Ors   Shankor Sitaram Sontakke  Anr
vs Balkrishna Sitaram Sontakke  Ors   referred to
Ram Juwan vs Devendra Nath Gupta AIR 1960 M P 280 Vishnu Sitaram Auchat vs Ramchandra Govind Joshi AIR 1932 Bombay 466 Jasimuddin Biswas vs Bhuban Jelini ILR 34 Calcutta 456 Ganganand Singh  Ors
vs Rameshwar Singh Bahadur  Anr  Chengan Soun Nayakam vs AN Menon AIR 1968 Kerala 213 Jiwibai vs Ramkumar Shrini was Murarka Agarwala AIR 1947 Nagpur 17 Govindamreal vs Marimuthu Maistry  Ors AIR 1959 Mad 7 Laxmidas Ranchhod das  Ors
vs Savitabai Hargovindas Shah AIR 1956 Bombay 54 Mohan Bat vs Jai Kishan AIR  Smt
Mohan Bat vs Smt
Jai kishan  Ors AIR  Nadirsha Hirji Bana  Ors
v Niranjanlkumar alias Nireshku mar Dharamchand Shah  Ors  approved
Kesarla Raghuram vs Dr Narsipalle Vasundara AIR 1983 A P disapproved