H. Hombe Gowda, J.
1. This is a revision petition filed against an order passed by the Munsiff-Magistrate of Dodballapur in C.C. No. 233/54 on his file directing the petitioner to pay compensation of Rs. 5/- to each of the three respondents after acquitting them in the case.
2. The petitioner filed a private complaint against the respondents for offences punishable under Sections 323 and 352 of the Penal Code into the Court of the Munsiff-Magistrate, Dodballapur and the same was registered as C. C. No. 233/54. The respondents who were served with summons appeared before the Court and pleaded not guilty to the charge that was read over and explained to them. The complainant and two witnesses were examined and the case for the petitioner was closed.
The respondents examined two witnesses on their behalf and closed their case. The learned Munsiff-Magistrate came to the conclusion that no case was made out against the respondents for any of the offences alleged against them and acquitted them. He was further of the opinion that the complaint was false, frivolous and vexatious and as such directed the petitioner to pay a sum of Rs. 5/- to each of the respondents as compensation under Section 250 of the Criminal P. C. It is against this order directing payment of compensation that the present revision petition has been filed by the petitioner.
3. Sri Y. Adinarayana Rao, the learned counsel for the petitioner, challenged the correctness of the order of the learned Munsiff-Magistrate directing the petitioner to pay compensation to the respondents on two grounds. He contended that the order of the learned Munsiff-Magistrate directing payment of compensation to the respondents without examining all the witnesses cited by the petitioner was illegal and was quite contrary to the provisions of Section 250 of the Criminal P. C.
He also contended that the order was illegal on account of the fact that the learned Munsiff-Magistrate had not issued any notice to the petitioner to show cause as to why he should not be directed to pay compensation to the respondents since his complaint was false, frivolous and vexatious and thus afforded an opportunity to the petitioner to prove that his complaint was not false or vexatious or frivolous, before passing an order. Section 250 of the Criminal P. C., reads thus:
'(1) If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or, if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid.
2. 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 that compensation to such amount not exceeding one hundred rupees or if the Magistrate is a Magistrate of the third class, not exceeding fifty rupees, as he may determine be paid by such complainant or informant to the accused or to each or any of them.'
It is clear from a reading of the above Section that the Magistrate should afford an opportunity to the complainant to show cause and raise any objection which he may touch before he is directed to pay compensation to the accused persons. It is further clear that it the complainant is absent, summons to show cause should be issued to him. Any order passed without observing the mandatory provisions of Section 250 of the Criminal P. C. is illegal and is liable to be set aside.
The very object of Section 250 (1) and (2) of the Criminal P. C., is to afford an opportunity to the complainant to show cause that his complaint was not frivolous, false or vexatious before an order against him under Section 250 of the Criminal P. C. If the complainant is present the Magistrate can direct him forthwith to show cause as to why he should not be made to pay compensation to the accused since his complaint was found to be false, frivolous or vexatious and if the complainant is absent the Court is bound to issue a notice to him to appear and show cause why he should not be compelled to pay compensation.
Reference in this connection may be made to a decision reported in -- 'Namberumal Naidu v. Muthu Kalathi Mudali', AIR 1942 Mad 241 (A). His Lordship Horwill J. has observed while setting aside an order passed by a Magistrate without affording an opportunity to the complainant to show cause as follows :
'I do not think it necessary to go as far as Baguley J., did in, -- 'King v. Maung Though Shwe', AIR 1938 Rang 161 (B), and in -- Ma E Myaing v. The King', AIR 1938 Hang 247 (C), and say that the actual words used by the complainant should be recorded separately as in the case of an accused under Section 342 of the Criminal P. C.
It is however necessary that the Magistrate should at least indicate in his judgment that he asked the requisite questions and he should set out, the explanation the complainant gave and say whether he thought the explanation satisfactory, and if so, why.
In most cases, the complainant says nothing more than that the evidence let in is true. Even in such a simple case as that, the Magistrate should note in his judgment that the complainant had no explanation to offer. For the above reasons it is necessary to set aside the order of compensation.'
The Magistrate is not only bound to afford art opportunity to the complainant to show cause as. to why he should not be directed to pay compensation but is also bound to consider the objections raised by the complainant and to record the judgment with reasons.
In this case it is clear from a perusal of the records that the learned Munsiff-Magistrate has not called upon the petitioner to show cause as to why he should not be directed to pay compensation to the respondents before passing such an order. The Judge's note of 26-10-1954 indicates that the petitioner was present on the date, when the judgment acquitting the respondents and directing the petitioner to pay compensation to them was passed.
Neither in the judgment nor in the order-sheet there is any indication that an opportunity was afforded to the petitioner to show cause as to why he should not be directed to pay compensation to the respondents The order passed by the learned Munsiff-Magistrate is, therefore, not sustainable and is illegal and is liable to be set aside.
4. The next ground urged against the order is that inasmuch as all the witnesses cited by the petitioner had not been examined before the accused were acquitted by him the order passed by the learned Munsiff-Magistrate directing payment of compensation to the accused persons is illegal. There is considerable force in this contention also.
It has been held in -- 'Parthasarathi Naicker v. Krishnaswami Ayyar', AIR 1928 Mad 169 (1) (D), that the awarding of compensation under Section 250 of the Criminal P.C. without having all the evidence that the complainant wants to adduce is illegal and is liable to be set aside. To the same effect is the decision of this Court reported in -- 'Halappa Gowda v. State of Mysore', AIR 1953 Mys 91 (E). His Lordship Justice Vasudevamurthy has observed as follows:
'There is also another point on which the order cannot be sustained. It has to be observed that though ten witnesses were cited for the prosecution only six witnesses were examined and the other four were not examined. I think the petitioner easy reasonably complain that he should not be made to pay compensation in a case where all the witnesses for the prosecution have not been examined and over the trial of which he had really no control.
It has been held in AIR 1928 Mad 169 (1) (D) that the awarding of compensation under Section 250, Cr. P. C., without having all the evidence that the complainant wants to adduce is illegal.'
No doubt the Magistrate is entitled at any stage to discharge the accused but that cannot be a ground for awarding compensation to the accused in all cases. It is clear from the records that the petitioner had cited three witnesses on his behalf in the memo filed before the learned Magistrate.
The Judge's note of 5-10-1954 indicates that the learned Magistrate examined the petitioner and two witnesses on his behalf and closed the case. No reasons are assigned by the learned Magistrate as to why he did not issue process to the other witness and examine him. There is no indication in the order-sheet that the complainant did not wish to examine the other witness.
The petitioner has therefore, reasonable grounds to urge that because all the witnesses that were cited by him were not examined, the order passed by the learned Munsiff-Magistrate directing him to pay compensation is illegal and is liable to be set aside. The respondents who were served with notices are absent. In my opinion the order passed by the learned Munsiff-Magistrate, Dodballapur directing the petitioner to pay compensation of Rs. 5/- to each of the respondents is illegal and is not sustainable and is liable to be set aside.
5. In the result, therefore, the order passedby the learned Munsiff-Magistrate, Dodballapurdirecting the petitioner to pay compensation to therespondents is set aside. The amount of compensation, if any, deposited by the petitioner is directedto be repaid to him.
6. Order set aside.