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Govindan Prabhakaran Vs. Sukumaran Nair and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1979CriLJ1186
AppellantGovindan Prabhakaran
RespondentSukumaran Nair and anr.
Excerpt:
.....any cause which such complainant or informant may show, and if he is satisfied that there was no reasonable ground for making the accusation, may, for reasons to be recorded, make an order that compensation to such amount, not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them. when he is satisfied that there was no reasonable ground for making the accusation, and for reasons to be recorded, that he could make an order directing the complainant or the informant to pay compensation to the accused concerned. and (3) the magistrate after recording reasons for doing so, to pass an order for payment of compensation by the complainant or the informant to the accused in cases where he..........of the cr. p.c. para 7 of the order of discharge ends as follows:i am of opinion that there is no reasonable ground for making the accusation - against the accused by the complainant and i find that this is a fit case for action, under section 250 crl. p.c. the complainant. is called upon to show cause why he should not pay compensation to the accused.order passed by the learned magistrate under sub-section (2) of section 250 crl. p.c. in the further proceedings reads as follows:the complainant is present and he is given an opportunity to state whether he has any explanation to offer why he should not be ordered to pay compensation to the accused. he is questioned and his statement recorded. he says that correct evidence is adduced by him against the accused. the explanation offered by.....
Judgment:
ORDER

K. Bhaskaran, J.

1. This criminal revision raises a short and interesting point in regard to the construction to be placed on Sub-section (2) of Section 250 of the Cr. P.C. 1973 (Act 2 of 1974).

2. The first respondent was prosecuted by the revision petitioner for an offence under Section 418 of the I.P.C. In this revision we are not really concerned with the details of the prosecution case or the evidence adduced in support of it. The learned Magistrate, having found that the complainant (revision petitioner) had failed to make out a prima facie case of an offence under Section 418 I.P.C. passed an order discharging the accused (Ist respondent) under Section 245(1) of the Cr. P.C. Para 7 of the order of discharge ends as follows:

I am of opinion that there is no reasonable ground for making the accusation - against the accused by the complainant and I find that this is a fit case for action, under Section 250 Crl. P.C. The complainant. is called upon to show cause why he should not pay compensation to the accused.

Order passed by the learned Magistrate under Sub-section (2) of Section 250 Crl. P.C. in the further proceedings reads as follows:

The complainant is present and he is given an opportunity to state whether he has any explanation to offer why he should not be ordered to pay compensation to the accused. He is questioned and his statement recorded. He says that correct evidence is adduced by him against the accused. The explanation offered by the complainant is not satisfactory and he has no reasonable explanation to offer for the malicious prosecution against the accused in this case. The complainant is ordered to pay compensation of Rs. 500/- in default to undergo simple imprisonment for 30 days. The amount of compensation, if realised will be paid to Sukumaran Nair accused in C. C. 335/70 as compensation as provided in Section 250(2) Crl. P.C.

Against the order of the learned Magistrate the complainant (revision petitioner) filed an appeal and a revision. The learned Sessions Judge, while upholding the order of discharge and the conclusion of the learned Magistrate that it was a fit case in which the complainant was to be ordered to pay compensation to the accused, reduced the amount of compensation to be paid from Rs. 500/- to Rs. 150/-

3. Sri K. Sudhakaran, the counsel for the revision petitioner, submitted that the courts below have committed a serious errer of law by not following strictly the procedure prescribed in Sub-section (2) of Section 250 of the Code. He pointed out that the learned Magistrate did not satisfy himself that the complainant (revision petitioner) had no reasonable ground for making an accusation against the accused (Ist respondent) as required under the sub-section referred to above after the complainant (revision petitioner) had given his statement showing cause for not to be held liable to pay compensation to the accused (Ist respondent); on the other hand, what the learned Magistrate did was to pass straightway an order fixing the amount of compensation on his having found the complainant (revision petitioner) had no satisfactory explanation to be offered. Sri Sudhakaran contended that the learned Magistrate's use of the expression 'malicious prosecution' itself was out of place, as it has no relevance in the scheme of the sub-section as it now stands. He emphasised that after the statement of the complainant or the informant was recorded, the learned Magistrate was required to satisfy himself whether there was reasonable ground for the complainant or the informant to make the accusation, without disposing of the matter by merely stating that 'the explanation offered by the complainant is not satisfactory and he has no reasonable explanation to offer for the malicious prosecution against the accused'. For the sake of convenience and easy reference Sub-sections (1) and (2) of Section 250 Crl. P.C. are extracted below:

(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 there was no reasonable ground for making the accusation against them or any of them, 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 there was no reasonable ground for making the accusation, may, for reasons to be recorded, make an order that compensation to such amount, not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

4. According to Sri. Sudhakaran, Sub-section (2) of Section 250 Crl. P.C. requires that the Magistrate, after the complainant or the informant, as the case may be, gave the statement showing cause on his being called upon to do so, shall consider the case afresh and satisfy himself whether there was reasonable ground for making an accusation, and it is only thereafter; when he is satisfied that there was no reasonable ground for making the accusation, and for reasons to be recorded, that he could make an order directing the complainant or the informant to pay compensation to the accused concerned. There appears to be force in this contention. The requirement of the sub-section would include: (1) the Magistrate to record and consider the statement showing cause, given by the complainant or the informant in obedience to his being call-' ed upon to do so under Sub-section (1) of Section 250, Cr. P. C; (2) The Magistrate to satisfy himself as to whether there was no reasonable ground for making the accusation; and (3) the Magistrate after recording reasons for doing so, to pass an order for payment of compensation by the complainant or the informant to the accused in cases where he is satisfied that there was no reasonable ground for accusation. It is not as though there was already an order under Sub-section (1) of Section 250 Crl. P.C. directing the complainant or the informant to pay compensation to the accused, and that order would remain in force unless rescinded by the Magistrate by making another order on his being satisfied that the complainant or the informant had shown cause as to why he should not be ordered to pay compensation. The correct position appears to be that at the stage when the Magistrate passes the order under Sub-section (1) of Section 250 Crl. P.C. he was only of opinion that there was no reasonable ground for making accusation, and therefore the complainant or the informant should be asked to show cause why an order for payment of compensation should not be passed against him. The requirement under Sub-section (2) appears to involve a consideration of the materials placed before the Magistrate in greater depth to satisfy himself whether there was no reasonable ground to make the accusation, and that is to be done after recording and considering the statement in which the complainant or the informant may show cause why action should not be taken against him, and finally for passing an order of compensation reasons have to be recorded. The expression 'if he is satisfied' used in Sub-section (2) of Section 250 Crl. P.C. as distinguished from 'is of opinion' in Sub-section (1) of Section 250 Crl. P.C. would indicate that before passing a final order under Sub-section (2), the Magistrate is required to give a more anxious and careful consideration to the question involved. The provisions of penal statutes are required to be strictly construed, as Maxwell would have it (Maxwell on Interpretation of Statutes, 12th Edition, at pages 239 and 240):

The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.

5. If what is slated above could be treated as guideline for interpreting the provisions of Sub-section (2) of Section 250 Cr. P.C. I am of the view that the Magistrate ought to have after having recorded and considered the statement of the complainant or the informant when he was called upon to show cause why he should not be ordered to pay compensation to the accused under Sub-section (1) of Section 250, considered the whole materials placed before him afresh to satisfy himself whether there was reasonable ground for the complainant or the informant to make the accusation, and it is only where he has satisfied himself that there was no such reasonable ground, and for reasons to be recorded, that the Magistrate would have passed an order directing the complainant or the informant to pay compensation to the accused. In as much as such procedure is not seen to have been strictly observed by the Magistrate and the Sessions Judge while passing the orders impugned in this revision, they are liable to be set aside.

In the result, the revision is allowed, the order of the learned Magistrate passed under Sub-section (2) of Section 250 Crl. P.C. modified by the learned Sessions Judge, is set aside. Amount, if any, paid by the revision petitioner towards compensation shall be refunded to him.


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