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Ram Dass Ghosh Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 763 of 1957
Judge
Reported inAIR1958Cal615,1958CriLJ1388,62CWN687
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 250(2), 250(3) and 439(5)
AppellantRam Dass Ghosh
RespondentThe State and ors.
Appellant AdvocateKishore Mukherjee, Adv.
Respondent AdvocateDevi Prosad Paul, Adv. for Opposite Parties 2, 3 and 4 and ;Satyendra Chandra Sen, Adv.
Cases ReferredFakir Das Dutt v. Gaya Dhar Jana
Excerpt:
- .....tried by a magistrate at katwa on charges under sections 323 and 448 of the indian penal code. the learned magistrate acquitted the opposite parties and found that 'prosecution signally failed to prove the occurrence' and that the complainant brought a maliciously false and frivlous case against the accused. while passing the order of acquittal, by the same judgment, the learned magistrate asked the complainant to show cause by 1-5-1957 why he will not be ordered to pay rs. 50/- each as compensation under section 250 of the code of criminal procedure to the accused. on 21-5-1957 the petitioner showed, cause which the learned magistrate found to be of no substance. the learned magistrate therefore, ordered the petitioner to pay the compensation as mentioned above.3. dr. devi prosad pal.....
Judgment:
ORDER

N.K. Sen, J.

1. This Rule is directed against an order by which the petitioner was ordered to pay a sum of Rs. 50/- as compensation under Section 250 of the Code of Criminal Procedure to each of the three opposite parties Nos. 2, 3 and 4, in default: to suffer simple imprisonment for fifteen days.

2. Upon a complaint made by the petitioner, opposite parties Nos. 2, 3 and 4 were tried by a Magistrate at Katwa on charges under Sections 323 and 448 of the Indian Penal Code. The learned Magistrate acquitted the opposite parties and found that 'prosecution signally failed to prove the occurrence' and that the complainant brought a maliciously false and frivlous case against the accused. While passing the order of acquittal, by the same judgment, the learned Magistrate asked the complainant to show cause by 1-5-1957 why he will not be ordered to pay Rs. 50/- each as compensation under Section 250 of the Code of Criminal Procedure to the accused. On 21-5-1957 the petitioner showed, cause which the learned Magistrate found to be of no substance. The learned Magistrate therefore, ordered the petitioner to pay the compensation as mentioned above.

3. Dr. Devi Prosad Pal appearing for opposite parties 2, 3 and 4, took a preliminary objection as to the maintainability of this revisional application. He argues that when the Magistrate passed an order directing the complainant to pay1 a sum of Rs. 50/- to each of the three accused persons as compensation, the order was appealable under the provisions of Section 250, Sub-section (3) of the Code of Criminal Procedure as the aggregate amount of compensation payable to all the accused collectively was more than Rs. 50/-. In support of his contention Dr. Pal has referred me to the decision of Sarab Dial v. Bir Singh, AIR 1928 Lah 638 (A). In that case the complainant was ordered to pay compensation to seven persons at the rate of Rs. 50/- each. The petitioners in that case pre-ferred a petition for revision to the learned Sessions Judge of the order of discharge and also preferred an appeal under Section 250 (3) against the order directing him to pay compensation to the accused. The learned Sessions Judge dismissed the petition for revision and held that no appeal lay to the High Court as the amount of compensation ordered to be paid to each accused individually did not exceed Rs. 50/-. The complainant thereafter came up to the High Court on the Revisional side and prayed for the setting aside of the order of discharge as well as the order to the effect that no appeal lay against the order directing him to pay compensation to the accused. The Lahore High Court held that having regard to the fact that the aggregate amount of compensation payable to the accused was Rs. 350/-, an appeal clearly lay to the Sessions Court.

4. Mr. Sen, appearing on behalf of the O. P. No. 1, the State, has also supported Dr. Pal and his contention is that in view of the provisions contained in Sub-section (2) taken along with those in Sub-section (3) of Section 250, clearly an appeal lay. It is to be noted in this connection that the petitioner in this case was directed to pay a sum of Rs. 50/-to each of the three opposite parties as compensation. In other words, he was called upon to pay a total sum of Rs. 150/- by way of compensation.

5. Mr. Kishore Mookerjee appearing on behalf of the petitioner has contended that in the present case no appeal lies and the complainant could only file an application in revision to challenge the order of the learned Magistrate. He has referred to the case of Fakir Das Dutt v. Gaya Dhar Jana : AIR1957Cal225 . Dehahrata Mookerf'ee J., who decided that case held that Section 250, Sub-section (2) of the Criminal Procedure Code prescribed the pecuniary limit of the Magistrate's power of directing payment of compensation. It has nothing to do with the right of appeal which is conferred by Sub-section (3) of Section 250 of the Code. It was argued by Mr. Mookerjee that a reference to Sub-section (2) made it clear that unless and until a compensation which was paid to a particular person exceeded the sum of Rs. 50/- there could be no appeal whatever. This argument was sought to be reinforced by a reference to the closing words of Sub-section (2) of Section 250. It is to be observed that a right of appeal is specifically dealt with in Sub-section (3) and as was pointed out by Debabrata Mookerjee T., with whom I entirely agree that it would not be right to mix up the provisions of these two sub-sections for the purpose of sustaining an argument that unless and until a person had been ordered to pay a compensatinn exceeding a sum of Rs. 50/-, he could not in any event have preferred I an appeal. The provisions contained in Sub-sections (2) land (3) are quite indenendent of each other. In one case the duty of the Magistrate in making an order under Section 250 & the pecuniary limit of punishment are dealt with and in the other case the forum of appeal is indicated. I therefore hold that the petitioner had clearly a right of appeal in the present case and therefore under Section 439, Sub-section (5) of the Code of Criminal Procedure no proceeding by way of revision could be entertained at the instance of the party who could have appealed but had not filed any.

6. I have, however, heard Mr. Mookerjee with regard to the merits of his application. Mr. Mookerjee for the petitioner, challenges the order of the learned Magistrate as being illegal, improper and unjust. He further complains that the petitioner's objection was not properly considered. His next objection was that in the main judgment of the Magistrate, there was no finding that the accusation was false and either frivolous or vexatious. Mr. Mookerjee also argued that the learned Magistrate overlooked the provisions contained in Section 250, Sub-section (2) of the Code.

7. In my judgment none of those objections is sustainable.

8. The judgment of the learned Magistrate passed on 15-4-1957 contains a clear finding that the accusation was maliciously false and frivolous. In an elaborate order passed on 30-5-1957 where the learned Magistrate considered the case shown by the petitioner, he has found that the cause shown was of no substance.

9. In my judgment, the learned Magistrate having found that the complaint was false and frivolous, it was not necessary for him to repeat the same in his order, after the petitioner had shown cause. Sub-section (2) of Section 250 of the Code requires that the Magistrate is to be satisfied that the accusation was false and either frivolous or vexatious. I do not think that the sub-section enjoins the Magistrate to repeat the relevant words again. All that is needed in this sub-section is to consider the cause shown.

10. There is, therefore, no substance in thepetition and the relevant Rule is discharged.


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