G.B. Pattnaik, J
1. The petitioner has invoked the inherent jurisdiction of this Court praying to expunge certain remarks made by the learned Judicial Magistrate First Class, Aska, in his judgment in G. R. Case No. 22/79 and to set aside the order of the learned Magistrate directing the petitioner to pay compensation to each of the accused persons in the said case on a finding that there was no sufficient ground for causing arrest of the accused persons.
2. The petitioner was the informant in G. R. Case No. 22/79 and on the basis of his information a criminal case was instituted against opposite parties 1 to 4 on the allegation that the opposite parties forcibly entered into the homestead of the petitioner armed with deadly weapons and assaulted the field servants. Though charge-sheet was submitted against the opposite parties under sections 147/148/149/447/448/323/379/506, I. P. C. the opposite parties stood the trial for the offence under section 448, I. P. C. The learned Judicial Magistrate, First Class, Aska, by 6rder dated 20.12.1983 acquitted the opposite parties and while acquitting, directed that the petitioner should pay compensation to the accused persons and in the Judgment of acquittal he has made some observation which the petitioner seeks for expenstion.
3. Mr. Padhi, the learned counsel for the petitioner, submits that the power of the Magistrate to award compensation for groundless arrest is provided for in section 358 of the Code of Criminal Procedure (for short 'the Code'). Though in terms the said section does not provide for an opportunity of heating before passing the order yet on the general principle of fair-play and natural justice a Magistrate must give a show cause against whom he proposes to pass an order under section 358 of the Code and since no such show-cause has has been given in the present case the order directing the payment of compensation must be quashed. He also submits that the conditions precedent for passing an order under section 358 of the Code have not been satisfied in the present case and, therefore, the order directing payment of compensation cannot be sustained. The learned counsel for the opposite parties on the other hand contends that the provisions of section 358 of the Code being clear and unambiguous and no show-cause having been intended by the legislature, a show-cause cannot be imported to it and, therefore, the impugned order does not suffer from any infirmity. The rival contentions require careful examination. Section 358 of the Code is quoted herein below in extenso for proper appreciation of the point in issue
'358 Compensation to persons groundlessly arrested-(1) whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding one hundred rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.
(2) In such cases, if more persons than one are arrested, the Magistrate may, in tike manner, award to each of them such compensation, not exceeding one hundred rupees, as such Magistrate thinks fit.
(3) All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.'
There is no doubt that in the language used in section 358 of the Code, the show-cause is not intended but in a similar provision contained in the Code, namely section 250, it has been provided for that when the Magistrate is of the opinion that there was no reasonable ground for making the accusation, then the Magistrate most call upon the person upon whose complaint or information, the accusation was made to show-cause as to why he should not pay compensation to such accused. Mr. Padhi's contention is based on the ground that keeping in mind the nature of the order a Magistrate is going to pass under section 358 of the Code and bearing in mind the fundamentals of criminal jurisprudence that no man can be condemned without affording him a reasonable opportunity, a show-cause must be imported into the provisions of section 358 of the Code. This question came up for consideration before a learned Judge of Gujarat High Court in the case of Shah Chandulal Gokaldas and Ors. v. Patel Baldevbhai Banchhod-das and Ors., 1980 Crl. L. J. 514. After discussing the procedure laid down both in sections 250 and 258 of the Code, the learned Judge held :
'Looking to the consequences which are likely to follow from the order of payment of compensation and looking to the fact that the Magistrate has to come to the conclusion that there was no sufficient ground for causing such arrest, principles of natural justice which must be read into all such sections and provisions of law required that an opportunity of showing cause and trying to satisfy the Magistrate that there was sufficient ground for causing the arrest should be given to the complainant or the person who caused the alleged wrongful arrest to be made... It may be pointed out that if this requirement based on principles of natural justice is not to be read into the provisions of section 358 of the Code of Criminal Procedure, it is likely that the section may be struck down on the ground of violation of reasonable procedural requirement contemplated by Arts 14 and 19 of the Constitution. Rule of law which is the basis of the procedural requirements of Arts. 14 and 19 of the Constitution presupposes the underlying basis of principles of natural justice and hence by reading down section 358 the requirement that principles of natural justice have to be adhered to must be read into section 358.'
In my opinion the aforesaid dictum lays down the correct interpretation of section 358 of the Code and, therefore, I am of the view that a show-cause must be read into the provisions of section 358 of the Code. Since no such show-cause has admittedly been given in this case to the petitioner before directing him to pay compensation, the order has become vulnerable and cannot be sustained.
Apart from that section 358 of the Code requires that there must be some direct proximate nexus between the informant and the arrest that is made. When on the receipt of an information about the commission of cognisable offence, a police officer investigates into the same and then decides the future course of action as to whether the accused should be saddled with the penalty contemplated under section 358 of the Code merely arrested or not, the informant cannot be because had set the law into motion. In order to attract the provisions of section 358 of the Code in such a case, something more must be found that the mere information being sent to the police station by the informant. Since the police interposes his own discretion and further acts in his own initiative and on the basis of materials collected during investigation arrests the accused, the informant cannot be stated to have caused the arrest of the accused. Further the mere fact that the Magistrate recorded a finding of acquittal would not by itself be a sufficient ground to award compensation under section 358 of the Code nor the Magistrate can jump to the conclusion that there was no sufficient ground for causing arrest of the accused merely because the judgment ended in acquittal. To attract section 358 of the Code to an informant something more must be present to indicate that the informant caused the arrest of the accused without any sufficient ground. It is also imperative from the phrase 'if it appears to the Magistrate' used in section 358(1) of the Code that there must be some objective basis for the satisfaction of the learned Magistrate to come to the conclusion that the informant caused the arrest of the accused and there was no sufficient ground for causing such arrest. In coming to the aforesaid conclusion, I am supported by a decision of the Karnataka High Court in the case of Mallappa v. Veerabasappa and others, 1977 Crl. L. J. 1856. Applying the aforesaid, principles to the facts of the present case I am of the opinion that the pre-conditions for exercise of powers under section 358 of the Code are not satisfied and consequently the impugned order directing payment of compensation by the petitioner in exercise of powers under section 353 of the Code must be set aside.
4. Coming to the second aspect of the case, namely, the prayer for expunction of the alleged objectionable observation, Mr. Padhi for the petitioner contends that the observation so made is of a sweeping nature and there is no evidence on record justifying the said remarks and the remarks were not at all necessary for the decision of the case and, therefore, this Court should invoke its inherent power to quash that portion. The alleged remarks which the petitioner seeks to be quashed are quoted in paragraph 7 of the present application filed in this Court.
'... It is created one P. W. 1 has sailed with P. W. 1 in the same boat in filing the charge-sheet falsely against the accused persona without proper investigation'
The law on the subject has been fully discussed in the case of (The State of Uttar Pradesh v. Mohammad Naim) AIR 1934 Supreme Court 703.Dealing with the ambit and scope of exercise of inherent power, the Supreme Court observed :
'It is now well-settled that the section confers no new powers on the High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The section provides that those powers which the Court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code. '
After discussing the decisions of several High Courts, the Supreme Court further observed :
'The High Court can in the exercise of its inherent jurisdiction expunge remarks made by it or by a lower Court if it be necessary to do so to prevent abuse of the process of the Court or otherwise to secure the ends of justice ; the jurisdiction is however of an exceptional nature and has to be exercised in in exceptional case only.'
The Court then observed in paragraph 10 of the said Judgment :
'...If there is one principle of cardinal importance in the administration of justice, it is this the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considered justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts; of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself ; (b) whether there is evidence on record bearing on that conduct justifying the remarks, and (c) whether it is necessary for the decision of the case, as an integral part thereof to animadvert on that conduct. It has also been recognised that judicial pronouncement must be judicial in nature and should not normally depart from sobriety, moderation and reserve.'
Applying the principles laid down in the aforesaid case to the facts and circumstances of the present case, I find that the learned Magistrate while discussing the evidence of P. W. 1 came to the conclusion that the F. I. R. story and deposition of P. W. 1 are not corroborative, because the F. I. R story is not a true one and is a created one. The aforesaid conclusion is on account of the fact though the F. I. R. version is that the accused. persons trespassed into the dwelling house but it transpires from the evidence that there was no dwelling house at all and the observation of the learned Magistrate is in relation to the appreciation of the evidence and forms an integral part of the order of acquittal. The said part, therefore, cannot be struck down in exercise of inherent powers. The learned Magistrate has acquitted on the ground that there was no dwelling house and, therefore, section 448 of the Indian Penal Code is not attracted. But that does not show that an intentionally false case has been foisted. Acquittal of the accused persons of the charge under section 448. I. P. C., on a finding that there was no dwelling house on the case land does not necessarily lead to the conclusion that the case is an intentionally false case and further the order of acquittal is not dependent in any manner, on the observation made by the learned Magistrate in paragraph 13 of his judgment. The expression in paragraph 13 to the effect:
'Enter this case as intentionally false'
is not an integral part of the judgment. The judgment of acquittal can very well be sustained without the same and in my opinion the said observation was not at all necessary and the evidence on record does not justify the said remarks. In that view of the matter and in the interests of justice, I would expunge the expression 'enter this case as intentionally false' contained in paragraph 13 of the judgment. '
5. For the aforesaid reasons, this criminal miscellaneous case is allowed.