Rajvi Roop Singh, J.C.
1. This is a reference made by the learned Sessions Judge of Tripura under Section 438, Cr.P.C. recommending that the order of the learned Magistrate First Class, Sadar, directing the complainant under Section 260 of the Code of Criminal Procedure to pay compensation of Rs. 50/- to the accused opposite party, in default of payment to suffer simple Imprisonment for 10 days, is bad in law and should be set aside.
2. The facts out of which this reference arises are briefly as follows:
(2a) That on 4.4.61, the petitioner Shri Devendra Chandra Paul, as the Secretary of the Udayan Club, filed a complaint in the Court of S.D.M. Agartala, Sadar, to the effect that on 28.3.61, the 5 accused persons opposite. party had broken the wall of the club named Udayan Club at Gopalnagar under Sidhai P.S. and had thereby caused damage to the extent of Rs. 300/-. The learned S.D.M. on the same day transferred the case to the file of Shri S.R. Chakraborty, Magistrate First Class, Sadar. The learned Magistrate summoned the 5 accused opposite party and framed charge against them tinder Section 427 I.P.C. The accused opposite party pleaded not guilty, and their defence was that there was no such club and that they had been Implicated falsely in the case out of grudge by the complainant.
3. The complainant, In order to bring home the offence against the accused persons, examined as many as 4 witnesses. The accused led no evidence in their defence. The learned Magistrate did not believe the prosecution story and accordingly by an order dated 28.5.62 acquitted all the 5 accused persons of the charge under Section 427 I.P.C. The learned Magistrate by an order of the same date called upon the petitioner who was present In Court, to show cause why he should not be directed to pay compensation amounting to Rs. 50/- In all to the opposite party under the provisions of Section 250 of the Code of Criminal Procedure on the ground that the complaint which he had made was false and vexatious.
4. It appears that no time was allowed to the petitioner to show cause why an order should not be made against him under Section 250 of the Code of Criminal Procedure with the result that the petitioner showed cause then and there and the learned Magistrate considered the cause thus shown and made straightway an order under Section 250 Cr.P.C. by which he directed the petitioner Id pay compensation to the opposite party. It is against this order that the learned Sessions Judge has made this reference.
5. Apart from the question that the petitioner was not given any time whatever to show cause, it appears, from the order Itself that the learned Magistrate does not possess a correct appreciation of the requirement of Section 250 of the Code. In the main order passed by the Magistrate acquitting the opposite party there Is hardly any indication about the Magistrate's views on the evidence from which it could reasonably be inferred that ' he considered the case brought by the petitioner as being false or vexatious. In order that an order under Section 250 of the Code might be made, the Magistrate's order acquitting the accused has to show on the face of it that he entirely disbelieved the prosecution case and that to his opinion the prosecution was clearly false, vexatious or a frivolous one. The reasons given by the Magistrate in the order acquitting the opposite party are somewhat of a flame character, and they by no means indicate that the Magistrate felt so strongly in the matter as to have thought it necessary in the interests of justice to make the order under Section 250 of the Code of Criminal Procedure.
6. In the course of hearing of this reference I was taken through a considerable portion of the evidence in the case fry the learned Advocate appearing on behalf of the petitioner; I have not the slightest doubt that in View of what appears from the evidence, the duty of the learned Magistrate clearly was to insist upon production of further evidence in the case under the provisions of Section 540 of the Code of Criminal procedure. He did nothing of the kind. He did not even look into the documents produced by the petitioner. He also overlooked the testimony of the eye-witness P.W. 4 Nepal Chandra, who was a, perfectly disinterested witness. The result of the is appreciation of the evidence was that the petitioner lost the case and the opposite party was acquitted.
7. In view of what I have observed, I do not think the order under Section 250 of the Cr.P.C. was at all justified. Besides that the order passed by the Magistrate on the face of it defective as it does not comply with the provisions of Section 250 Cr.P.C. Sub-section (2) of Section 250 of the Criminal P.C. provides that the Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct the compensation to be paid to the persons complained against. It is clear that what the section requires is that the Magistrate has to form his own opinion as regards the merits of the accusation after he has heard the complainant when he shows cause, and then it becomes the duty of the Magistrate dealing with the matter to record a finding that the case which was brought was false and either frivolous or vexatious. It is not, in my Judgment, sufficient compliance with the requirements of the law to record an opinion in the main judgment itself that the allegations made were false and vexatious. The section clearly requires that the finding that the case was false and it was either frivoluous or vexatious has to be reached after cause has been shown by the complainant. In the present caw, there is no finding recorded by the learned Magistrate which might indicate that he had arrived at the contusion after having paid due attention to the cause that was shown by the petitioner. In these circumstances, I must hold that the order complained of is bad and must be set aside.
8. On behalf of the opposite party it was argued that although the learned Magistrate did not record his finding that the accusations brought by the petitioner were false and that they were either frivolous or vexatious in the final order made under Section 250, nevertheless that defect is cured by reason of the fact that similar findings were reached in the main case by which the order of acquittal was made. I am not prepared to accept this contention. Sub-section (2) makes it quite clear that the finding has to be reached only after cause has been shown and that finding must be In terms of Sub-Section (2). If a learned Magistrate while dealing with the main case comes to the conclusion that the allegations brought were false In the sense that they were not found sustainable, on the evidence In the case that cannot possibly, In my view, do duty for the requirement of Sub-Section (2) Which obliges the Magistrate to hear In the first Instance the cause shown on behalf of the complainant and then-to record a finding that the allegations were false and they were either frivolous or vexatious. In the present case, there has been no compliance whatever with the provisions of Sub-section (2). The finding reached by the Magistrate in the main judgment that the allegations are false cannot, my view, be enough since a clear and express finding was required to be reached under the provision of Sub-section (2) and that only after cause had bean shown By the complainant
9. In these circumstances, the reference must be accepted and the order of payment of compensation must be set aside.
10. I, therefore, accept the reference and set aside the order passed by the Magistrate, Sadar, directing the petitioner to pay compensation to the respondents. The amount of compensation if deposited, will be refunded to the petitioner.