Consideration and lawful objects | 'A' institutes a prosecution against 'B' for theft of valuable articles but he subsequently agrees to drop down the prosecution…Has 'A' any remedy against 'B'?

Question: Consideration and lawful objects | ‘A’ institutes a prosecution against ‘B’ for theft of valuable articles but he subsequently agrees to drop down the prosecution as ‘B’ promised to restore the articles or the price thereof in a case to ‘A’. ‘A’ drops the prosecution but ‘B’ fails to fulfill his promise. Has ‘A’ any remedy against ‘B’? [RJS 1974]

Find the answer to the mains question only on Legal Bites. [Consideration and lawful objects | ‘A’ institutes a prosecution against ‘B’ for theft of valuable articles but he subsequently agrees to drop down the prosecution…Has ‘A’ any remedy against ‘B’?]

Answer

The facts of the present proposition are borrowed from the illustration (h) appended to the Section 23 of The Indian Contract Act, 1872. In this case where ‘A’ promises ‘B’ to drop a prosecution which he has instituted against ‘B’ for robbery and ‘B’ promises to restore the value of things taken. The agreement is void, as its object is unlawful.

Section 23 of The Contract Act,1872 lays down the provision as to what considerations and objects are lawful, and whatnot. It states that the consideration or object of an agreement is lawful, unless:

1. 1. It is forbidden by law;
   2. Or is of such a nature that, if permitted, it would defeat the provisions of any law;
   3. Or is fraudulent;
   4. Or involves or implies, injury to the person or property of another;
   5. Or the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. The consideration in an agreement is unlawful if it is to drop a prosecution for robbery in consideration of repayment of what was stolen because it is against public policy.

The expression “public policy” means and includes a wide range of topics and one such is an agreement of stifling prosecutions. It is in the public interest that criminals should be prosecuted and punished. Hence, an agreement not to prosecute an offender or to withdraw a pending prosecution is void if the offense is of public nature. Such agreements are called agreements to stifle prosecution. “You shall not make a trade of a felony.” “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 the private individuals.” However, the law allows compromise agreements in respect of compoundable offenses.” But the compromise of a non-compoundable offense is not allowed.

As Lord Atkin observed in the case of Elamma v. Fr Joseph Arnachani Olikkan, [(2003) 2 KLT 536] that: To insist on reparation as consideration for the promise to abandon criminal proceedings is a serious abuse of the right of private prosecution. The citizen who proposes to vindicate the criminal law must do so whole-heartedly in the interest of justice, and must not seek his own advantage.

Thus, in the present case at hand, where ‘A’ and ‘B’ reached to an agreement to drop the prosecution on the promise that ‘B’ will restore the stolen article, but ‘B’ fails to fulfill his promise after ‘A’ dropped the charges against him, such an agreement between the two is void, being against the public policy. Thus, such an agreement has no value in the eyes of law, and ‘A’ still has a valid remedy against ‘B’.

---

Law of Contract Mains Questions Series: Important Questions for Judiciary, APO & University Exams

1. Law of Contract Mains Questions Series Part-I
2. Law of Contract Mains Questions Series Part-II
3. Law of Contract Mains Questions Series Part-III
4. Law of Contract Mains Questions Series Part-IV
5. Law of Contract Mains Questions Series Part-V
6. Law of Contract Mains Questions Series Part-VI
7. Law of Contract Mains Questions Series Part-VII
8. Law of Contract Mains Questions Series Part-VIII
9. Law of Contract Mains Questions Series Part-IX
10. Law of Contract Mains Questions Series Part-X