B.J. Divan, C.J.
1. The petitioner in this revision application is the Food Inspector, Sidhpur Municipality in Sidhpur town of Mehsana District. The first respondent is original accused No. 1 and the second respondent is the original accused No. 2 in the case instituted on a complaint filed by the petitioner in the Court of the learned Judicial Magistrate, First Class, Sidhpur, and the third respondent is the State of Gujarat. This criminal revision application has been filed by she petitioner against the order by which the learned Judicial Magistrate, First Class, directed the Petitioner to pay compensation to accused Nos. 1 and 2 at the rate of Rs. 50/- to each of the two accused. This order was passed under Section 250 Sub-section (2) of the Criminal Procedure Code of 1973.
2. The facts leading to this criminal revision application are that in his capacity as Food Inspector the petitioner took sample of milk on March 23, 1976 at about 8-30 a.m. on a public road in Sidhpur town. The petitioner at that time look the sample from one person who gave his name as Ishwarbhai Mahadevbhai Rabari and after all formalities were over regarding the sample, ha sent it for analysis and ultimately filed a complaint against that individual Ishwarbhai Mahadevbhai Rabari. At the time when the sample was taken the person who gave his name as Ishwarbhai Mahadevbhai Rabari stated that he was merely an employee of accused No. 1 Ganeshbharthi Jasvantbharthi, a resident of Sidhpur, and on the basis of that statement accused No. 1 was also joined as a co-accused in the case instituted by the petitioner. Ultimately it transpired when the case reached hearing that the person from whom the sample was taken on 23rd March 1976 was not Ishwarbhai Mahadevbhai Rabari but some other individual and ultimately after making inquiries through the surety on whose surety bond the person who gave his name as Ishwarbhai Mahadevbhai Rabari was released on bail, was contacted and it was ascertained that Tharkada Chatarji Jivaji, who was subsequently brought before the Court as accused No. 2 and who is now appearing as respondent No. 2 in the present proceedings, was the person from whom the sample was taken. Ultimately on merits of the case the learned Magistrate acquitted the two accused. I am not concerned in this case with the merits of that order of acquittal However, under Section 250 Sub-section (2) the learned Magistrate proceeded against the Food Inspector and directed him to pay an amount of Rs. 50/- to each of the two accused as compensation.
3. Under Section 250 Sub-section (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 then one; or, if such person is not present, direct the issue of a summons to him to appear and show cause as aforesaid.
And under Sub-section (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. It is clear that it is only if the Magistrate can pass an order under Section 250 Sub-section (2) if he is of the opinion that there was no reasonable ground for making the accusaction. Absence of reasonable ground for making the accusation against the accused concerned is the main basis on which the powers of the Magistrate under Section 250 Sub-section (1) and Sub-section (2) can be exercised. In the instant case it is clear that the sample was sent to the Chemical Amalyst for analysis and it was only after the report was received that the complaint was filed to the Magistrate's Court on May 5, 1976. It is true that because of the wrong name given by accused No. 2, he having given his name as Ishwarbhai Mahadevbhai Rabari, considerable confusion has arisen, but for that confusion the petitioner cannot be held responsible. On the materials in the shape of gathering the sample and getting the sample analysed by the competent Analyst the petitioner, the Food Inspector, was in possession of materials on the basis of which it cannot be said there was no reasonable ground for making the accusation. As regards accused No 1, at the time when the sample was taken the accused No. 2 had stated that he was an employee of accused No. 1 and was selling milk on behalf of accused No. 1. If that position of employer-employee relationship was not established, accused No. 1 was entitled to an acquittal but it cannot be said that there was no reasonable ground for making the accusation against accused No. 1. Accused No. 2 was the accusation against accused No. 1 Accused No. 2 was the person from whom the sample was taken and therefore there was clearly a reasonable ground for making the accusation against accused No. 2 and in the light of the statement of accused No. 2 involving accused No. 1, there was also clearly a reasonable ground for making the accusation against No. 1 also. Since it cannot be said that there was no reasonable ground for making the accusation the power of the learned Magistrate to pass an appropriate order under Sub-section (2) of Section 250 can never come into play and, with respect of the learned Magistrate, he was in error when he passed the order under Section 250 Sub-section (2) directing the petitioner to pay compensation to each of the two accused as stated above.
5. Under these circumstances, the order of the learned Magistrate directing payment of con sensation at the rate of Rs. 50/- to each of the accused is quashed and set aside. The principal point which was argued before me was not regarding the acquittal of accused Nos. I and 2 but was regarding the order directing payment of compensation and that is why I have dealt with that point only.
6. The Rule is therefore made absolute accordingly and the order of the learned Magistrate regarding payment of compensation is quashed and set aside. Amount of compensation if deposited in court to be, returned to the petitioner.