1. This is a rule granted by my learned brothers Mr. Justice Newbould and Mr. Justice Mukerji calling upon the Chief Presidency Magistrate and upon the Opposite Party Abdul Jabbar to show cause why the order directing the payment of Rs. 25 as compensation to Abdul Jabbar should not be set aside on the ground that the Magistrate did not proceed in compliance with Section 250 of the Code of Criminal Procedure.
2. The Rule was obtained by the complainant. He made a complaint against Sheik Yusuf and Abdul Jabbar, alleging that an offence of simple hurt bad been committed by these two accused.
3. The case was heard by the learned 3rd Presidency Magistrate and after bearing some witnesses called on behalf of the complainant, the learned Magistrate discharged the second accused, viz., Abdul Jabbar on the 23rd of May, 1924.
4. The case, as far as the first accused Sheik Yusuf was concerned, was adjourned and was finally disposed of by the learned Magistrate on the 2nd of Jane, 1924, when he acquitted the first accused. The learned Magistrate on the 2nd of June, called upon the complainant to show cause why he should not pay compensation to the two accused under the provisions of Section 250 of the Criminal Procedure Code. The complainant apparently was in Court that day; and, after hearing the complainant, the learned Magistrate directed him, to pay Rs. 25 to each of the accused under Section 250 of the Criminal Procedure Code. Then an application for a Rule was made, and this Rule was granted. It is to be noted that the Rule was limited to the case of the second accused Abdul Jabbar. The argument of the learned Vakil who appeared for the complainant was to the effect that the order directing the complainant to show cause why he should not pay compensation to Abdul Jabbar was not made in accordance with the provisions of Section 250, inasmuch as the accused Abdul Jabbar was discharged on the 23rd of May, and the order with regard to compensation was made on the 2nd of June. Section 250 has been amended by the recent amending Act and now runs as follows:
(1) If, in any case instituted upon complaint...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, is 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.' It appears to me that in this case the Magistrate did not follow the provisions of that section. It is clear that on the 23rd of May, Abdul Jabbar was discharged: and, as far as he was concerned the proceedings were at an end. If the Magistrate had desired to call upon the complainant to show cause why he should not pay compensation to Abdul Jabbar he should have made the order at the same time as he made the order of discharge, that is to say, if the complainant was present in Court at the time. There is no doubt in this case that the complainant was present in Court on the 23rd of May, 1924; and, consequently, the order calling upon the complainant to show cause why he should not pay compensation to Abdul Jabbar should have been made on the 23rd of May. It was argued by the learned Vakil, who appeared on behalf of Abdul Jabbar to show cause, that the order was in accordance with the provisions of the section, because the proceedings in the case were not finally determined until the 2nd of June, 1924, when Sheik Yusuf was acquitted. In my opinion that argument cannot be accepted. It disregards altogether the words of the section to which I have already referred: and, it also disregards the fact that on the 23rd of May, 1924, the proceedings were entirely at an end so far as Abdul Jabbar was concerned.
5. The further argument by the learned Vakil who appeared to show cause, was that although the provisions of Section 250 were not complied with, this Court should apply the provisions of Section 537 of the Code of Criminal Procedure. He argued that no prejudice had been caused to the complainant, and there would be no failure of justice if this order were allowed to stand. I do not understand why Section 250 was amended and enacted in the precise words which are now to be found in it, unless it was intended that its provisions should be observed and carried out by the Subordinate Court. I think, it is desirable that we should make it clear that the provisions of the Criminal Procedure Code should be observed by the Magistrate in Subordinate Courts. For these reasons, in my judgment, this Rule should be made absolute and the order, directing compensation to be paid to Abdul Jabbar, should be set aside. The compensation, if paid, will be refunded.
6. I agree.