A promises to drop prosecution against B for robbery and B promises to restore value of thing taken. Is agreement valid?

The agreement in this illustration is void. The law answers this question not by inference but by express provision — Illustration (h) to Section 23 of the Indian Contract Act, 1872 provides precisely this scenario: "A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful." This makes the present problem one of the clearest illustrations of the doctrine against stifling prosecution.

The Foundational Principle: Stifling Prosecution

The administration of criminal justice is a matter of public concern, and the State has a vital interest in ensuring that criminals are prosecuted and brought to account. An agreement, the object of which is to stifle a prosecution, is therefore regarded as opposed to public policy — one of the heads of unlawfulness under Section 23. The principle is stated with great force in the sources: "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." The essence of the doctrine is that no private person should be permitted to convert a criminal proceeding — which belongs to the State and the public — into a subject of private bargain.

Why Robbery Makes This Agreement Clearly Void

The critical distinction in this area of law is between compoundable and non-compoundable offences. Robbery is a serious offence of public nature. It is not listed as a compoundable offence under the Code of Criminal Procedure. Where an offence is compoundable, the law itself encourages compromise between the parties, and an agreement to withdraw such a prosecution is not against public policy. But where the offence is non-compoundable, an agreement made for the purpose of compounding it or stifling the prosecution in respect of it is unenforceable and cannot be sued upon — and this principle applies even if part of the consideration appears legitimate, such as the restoration of the value of property taken.

The Supreme Court underlined this in V. Narasimharaju v. V. Gurumurthy Raju (AIR 1963 SC 107), where partners in a firm entered into an agreement to refer disputes to arbitration, and the complainant did not press his criminal complaint as a result. When the arbitration award was sought to be enforced, the Supreme Court held that the agreement was for unlawful consideration, since it amounted to a stifling of prosecution for a non-compoundable offence. The award could not be enforced.

The Test: Object, Not Merely Motive

The law draws a fine but important distinction here. The agreement is void only when it is an express or implied term of the bargain that the non-compoundable prosecution shall not be proceeded with — when, in other words, the object of the agreement is to stifle prosecution. If the withdrawal of prosecution is merely a motive or hope of one of the parties, without being the consideration or object of the contract, the agreement may not be void. In the present case, however, A's promise to drop the prosecution is the very consideration given in exchange for B's promise to restore value. The two promises stand or fall together. The dropping of prosecution is not a background motive — it is the very object of the transaction. This takes the agreement squarely within the prohibition.

B Cannot Enforce A's Promise; A Cannot Enforce B's Promise

The consequence flows inexorably from the voidness of the agreement. Neither party acquires any enforceable right. If A drops the prosecution and B then refuses to restore the value of the stolen articles, B cannot be sued. Equally, if B restores the value expecting A to drop the prosecution and A proceeds with the prosecution nonetheless, B cannot recover the restored amount on the basis of this agreement. As the sources clearly state, even if the prosecution is proceeded with by the authorities despite the agreement to withdraw it, the agreement remains void.

An Additional Dimension: Coercion

There is one notable qualification which the courts have recognised. If B was induced to pay or promise under coercion — that is, under the pressure of the threatened prosecution, which could not lawfully be used as a bargaining weapon — then B may be able to recover monies paid under Section 72 of the Contract Act as money paid under coercion. The sources note that a person charged with a non-compoundable offence who is induced to pay money to stifle the prosecution is entitled to recover back the amount, the parties not being considered in pari delicto in such circumstances. However, if there is no evidence of pressure or coercion, and both parties entered the arrangement voluntarily, they would be treated as equally at fault, and the amount paid could not be recovered.

Conclusion

The agreement between A and B is void under Section 23 of the Indian Contract Act, as its object is opposed to public policy — specifically the settled doctrine against stifling prosecutions for non-compoundable offences. Robbery, being a non-compoundable offence of public character, cannot be the subject of a private bargain between the complainant and the accused. B's promise to restore the value of the stolen things, and A's promise to drop the prosecution, are bound together as one unlawful transaction. No court will enforce either promise, for as the maxim says, ex turpi causa non oritur actio — from a disreputable cause, no action arises.