1. This Rule was granted to the petitioner Ram Narain Acharjee, who has been ordered to pay Rs. 50 as compensation to the accused in the case which he had brought against him for causing hurt.
2. The ground which has been taken that the order for compensation is not included in the order of acquittal cannot, we think, be sustained. It is clear that the complainant was then and there called upon to show causes, and the order against him for compensation was made at the same time by the Sub-Deputy Magistrate. It was recorded, it is true, as a postscript to the order of acquittal, but on, the same piece of paper, and formed part of the same order. On the evidence we do not feel disposed to interfere in revision. It appears from the Magistrate's explanation that in his allegations made before this Court the present petitioner has gone outside the record of the case and stated a number of facts which are not to be found there. These facts appear to have, been introduced mainly for the purpose of creating prejudice.
3. The main fact on which the petitioner now relies is that he went to the hospital on the day following the alleged occurrence to be treated for an injury to his; finger, that is, the hurt he has complained of in the case. The ticket, of the hospital no doubt shows that be went there for treatment for an injury to the finger. But the Doctor is unable to recollect that there was any such injury, and he now states, in his evidence before the Court that the appearance of the finger may he due to gout or other causes. It would seem that; the petitioner took advantage of an altercation which undoubtedly took place to make out a case of assault against the accused.
4. The order for compensation is not correct in form, in so far as it orders the complainant to undergo one month's simple imprisonment: 'When, and if, the amount of compensation cannot be recovered.' The oases are clear that imprisonment cannot be ordered until some attempt baa been made to levy the compensation in the manner provided by Section 386, Criminal Procedure Code, for the levy of a find. See Priya Nath Bose v. Roy Basanta Kumar Singh 5 C. W. N. 213, Suchandi Kolitani v. Dom Kolita 5 C. W. N. 214, Parsi Hojra v. Bandhi Dhanuk 28 C, 251.
With this modification we discharge the Rule.