An agreement to stifle prosecution is void on grounds of public policy.

( 1 ) THESE two applications in revision have been filed by the plaintiff from the judgment of the Small Cause Court dismissing his suits based on two pro-notes. Though the plaintiff did not mention in the plaint the circumstances in which the pro-notes had been executed, they were brought out in evidence. The plaintiff, who is a jailor, reported to the police that two young boys -- sons respectively of the defendants in the Small Cause Suits -- had jointly stolen a watch belonging to him, and worth about Rs. 150/ -. A case was started as usual and when it was pending investigation the fathers of the two boys executed pro-notes for amounts totalling the estimated price of the watch. The cases were dropped.

( 2 ) IN the suits, the defence was that there was no consideration, the pronotes were executed under pressure or coercion, and at all events they were executed as part of the agreement to state prosecution and therefore void on grounds of public policy. The plaintiff contended that there was no evidence of threat or pressure and the fathers of the two boys voluntarily executed the notes being convinced that they had committed theft and that the owner of the watch i. e. , the plaintiff was entitled to their value from the boys or their parents. It was also pointed out on his behalf that the offence under Section 379, is after the amendment of the Criminal Procedure Code in 1956, compoundable with the court's permission where the value of the property, as in the instant case, is less than Rs. 250/ -. The Small Cause Court, however, held that the consideration, if any, was void and accordingly dismissed the suits.

( 3 ) A problem like this arises in three types of suits which, while materially differing in other respects, have the common feature, that there is an attempt successful or otherwise, of stifling prosecution, and one of the parties either claims or has already received money or other valuable consideration, and the other party, as the case may be, resists the claim or seeks recovery or restitution of what it has given the prosecutor. The latter might have already recovered the value of his property, or entered into an agreement for payment to him by the accused or somebody interested in him, or thirdly, is, as in the present case, suing on the basis of a promissory note taken in accordance with the agreement. In all of them, the crucial question is whether the transaction is void under Section 23, Contract act on the ground of illegality or opposition to public policy.

( 4 ) IF the circumstances themselves speak, it is unnecessary for the party concerned to prove by direct evidence that there was coercion in the sense that word is used in Section 72, Contract Act. But there should be something on the record clearly pointing to the actual or imminent starting of a criminal case and, after the agreement, a forbearance from starting it or withdrawal or dropping of the prosecution already started. In the Civil Suit it is unnecessary to prove that the police took any active part or were even aware of the arrangement between the parties. Nor is it necessary to show that the complainant is liable to be charged under Section 213 I. P. C. , though in practice the stifling of the prosecution for a non-compoundable charge would be an offence under that section. The basic principle is, in the words, of the Calcutta High Court in Sudhindra Kumar v. Ganesh Chandra, AIR 1938 Cal 840. "it is against public policy to make a trade of felony or attempt to secure benefit by stifling a prosecution or compounding an offence which is not compoundable in law. " by compoundable is meant compoundable without interference of the Court at the free choice of the parties. "no Court of law can countenance or give effect to an agreement which attempts to take the administration of law out of the hands of the judges and put it in the hands of private individuals. " again, in the Nagpur case reported in Mohanlal v. Kashiram, AIR 19